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Bill C-32

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C-32
Second Session, Thirty-ninth Parliament,
56 Elizabeth II, 2007
HOUSE OF COMMONS OF CANADA
BILL C-32
An Act respecting the sustainable development of Canada’s seacoast and inland fisheries
first reading, November 29, 2007
THE MINISTER OF FISHERIES AND OCEANS

90391

RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act respecting the sustainable development of Canada’s seacoast and inland fisheries”.
SUMMARY
This enactment repeals and replaces the Fisheries Act. It seeks to provide for the sustainable development of Canadian fisheries and fish habitat in collaboration with fishers, the provinces, aboriginal groups and other Canadians.
It sets out management principles governing the exercise of responsibilities under the Act, and provides tools and authorities to improve the ability of the Minister of Fisheries and Oceans to properly manage fisheries and fish habitat.
Part 1 establishes a regime for the proper management and control of fisheries. It allows the Minister to stabilize access and allocation in fisheries, issue fishing licences, conclude agreements with groups that participate in a fishery and issue fisheries management orders.
Part 2 provides for the conservation and protection of fish and fish habitat.
Part 3 provides for the control and management of aquatic invasive species.
Part 4 provides the necessary powers to administer and enforce the Act.
Part 5 establishes the Canada Fisheries Tribunal and sets out a system of licence sanctions for fisheries violations to be administered by that Tribunal, which will also consider appeals of licence decisions.
Part 6 provides for regulations and other related matters required for the administration of the Act.
Part 7 sets out transitional provisions and consequential amendments and repeals certain other Acts.

Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca

TABLE OF PROVISIONS
AN ACT RESPECTING THE SUSTAINABLE DEVELOPMENT OF CANADA’S SEACOAST AND INLAND FISHERIES
Preamble
SHORT TITLE
1.       Fisheries Act, 2007
PURPOSE OF ACT
2.       Purpose
INTERPRETATION
3.       Definitions
HER MAJESTY
4.       Binding on Her Majesty
TERRITORIAL OPERATION
5.       Application
APPLICATION PRINCIPLES
6.       Principles
AGREEMENTS WITH PROVINCES
7.       Minister may enter into agreements
8.       Agreements to be published
9.       Declaration of equivalent provisions
10.       Report to Parliament
PROGRAMS AND PROJECTS
11.       Objectives
12.       Financial assistance
13.       Agreements, etc.
ADVISORY PANELS
14.       Minister may establish panels
INFORMATION
15.       Persons to provide information
FEES
16.       Services or use of facilities
17.       Products, rights and privileges
18.       Regulatory processes, etc.
19.       Consultation
20.       Power to make regulations
21.       Proceeds of fees — provinces
LIABILITY
22.       Immunity
DELEGATION
23.       Delegation to provincial minister
24.       Interpretation Act
PART 1
FISHERIES MANAGEMENT AND CONSERVATION AND PROTECTION OF FISH
Considerations
25.       Conservation and protection of fish and fish habitat
Licences
26.       Persons authorized to fish under a licence
27.       Regulations — licence applications and issuance
28.       Designation of licensing officers
29.       Issuance of licences
30.       Nature of licences
31.       Refusal to issue licences
32.       Appeals to Tribunal
33.       Conditions
34.       Prescribed licences prevail over regulations
35.       Revocation
Leases
36.       Issuance of leases
Allocations
37.       Allocation among groups and communities
Fisheries Management Orders
38.       Minister may make order
39.       Duty to comply
40.       Setting gear during close time
41.       Notice
42.       Inconsistency with licence conditions
Fisheries Management Agreements
43.       Minister may enter into agreement
44.       Publication
45.       Inconsistency with regulations or fees
46.       Minister’s powers not limited
Nisga’a Annual Fishing Plan
47.       Definition of “fishing plan”
Prohibitions
48.       Killing of fish
49.       Fishing in areas subject to lease
50.       Fishing gear or equipment
51.       Main channel not to be obstructed
52.       Fishing gear not to obstruct fish
53.       Fishways and canals
54.       Unlawful sale or possession
Regulations
55.       Governor in Council
PART 2
CONSERVATION AND PROTECTION OF FISH AND FISH HABITAT, AND POLLUTION PREVENTION
Interpretation
56.       Definitions
Conservation and Protection of Fish and Fish Habitat
57.       Studies, analyses, samples and evaluations
58.       Devices to prevent escape of fish
59.       Alteration, disruption or destruction of fish habitat
Pollution Prevention
60.       Throwing overboard of certain substances prohibited
Works and Undertakings
61.       Duty to provide information
Reports and Corrective Measures
62.       Duty to notify
Regulations
63.       Governor in Council
Civil Liability
64.       Liability
Offences and Punishment
65.       Contravention of subsection 59(1) or 60(1) or (2)
66.       Contravention of other provisions
67.       Matters of proof
Report to Parliament
68.       Annual report
PART 3
AQUATIC INVASIVE SPECIES
69.       Prohibition — export, import, transport
70.       Destruction of members of aquatic invasive species
71.       Regulations
72.       Offences and punishment
PART 4
ADMINISTRATION AND ENFORCEMENT
Fishery Officers, Fishery Guardians, Inspectors, Analysts and Certification Officers
73.       Designation of fishery officers, fishery guardians and inspectors
74.       Nisga’a laws
75.       Application
76.       Designation of analysts
77.       Designation of certification officers
Inspection
78.       Powers — fishery officers and fishery guardians
79.       Warrant required to enter dwelling-place
80.       Duty to assist
Search
81.       Warrant
82.       When warrant not necessary
83.       Entry
Seizure
84.       Power to seize
85.       Release of seized fish
86.       Detention of seized things
87.       Perishables
88.       Release of seized things on deposit of security
Detention of Seized Things
89.       Seized things released if no proceeding commenced
90.       Management of seized things
Forfeiture and Disposition
91.       Offence — forfeiture
92.       Violation — forfeiture
93.       If person has absconded
94.       Notice of forfeiture
95.       Forfeiture if ownership not ascertainable
96.       Forfeiture on consent
97.       Disposition of forfeited things
98.       Release of things not forfeited
Relief from Forfeiture
99.       Application by person claiming interest
100.       Release if security given
101.       Disposition of thing
102.       Order by court
103.       Ranking of applicants
104.       Appeal
105.       Application to Minister
106.       Discharge of encumbrances
107.       Her Majesty not liable for shortfall
Other Enforcement Measures
108.       Arrest
Prohibitions, Offences and Punishment
Obstruction and False Information
109.       Obstruction
110.       False statements
Exemption
111.       Administering or enforcing Act
General Provisions
112.       Punishment not otherwise provided for
113.       Subsection 52(1) and paragraph 57(4)(a)
114.       Offences deemed committed in Canada
115.       Revocation, etc.
116.       Orders of court
117.       Additional fine
118.       Suspended sentence
119.       Variation of orders
120.       Offence and punishment
121.       Continuing offences
122.       Offences by corporate officers, etc.
123.       Offences by employees, agents or mandataries
124.       Offences committed by person authorized to fish
125.       Due diligence defence
126.       Burden of proving licence
127.       Limitation period
128.       Appeal in proceedings by indictment
Execution
129.       Debt due to Her Majesty
Alternative Measures Agreements
130.       Definitions
131.       When measures may be used
132.       Sentencing considerations
133.       Nature of measures contained in agreement
134.       Duration of agreement
135.       Filing in court for the purpose of public access
136.       Stay and recommencement of proceedings
137.       Application to vary agreement
138.       Records
139.       Records of police forces and investigative bodies
140.       Government records
141.       Disclosure of records
142.       Agreements respecting exchange of information
143.       Regulations
Ticketable Offences
144.       Procedure
145.       Notice of forfeiture
146.       Consequences of payment
Other Remedies
147.       Injunction
Regulations
148.       Governor in Council
PART 5
CANADA FISHERIES TRIBUNAL
Establishment of Tribunal
149.       Canada Fisheries Tribunal
150.       Composition
151.       Chief executive officer
152.       Tenure
153.       Knowledge
154.       Conflict of interest
155.       Other employment
156.       Remuneration
157.       Acting after expiry of term
Services and Facilities and Staffing
158.       Secretary and other staff
159.       Government services and facilities
160.       Sharing of information
161.       Annual report
Procedural Matters
162.       Exercise of jurisdiction
163.       Right to appear
164.       Powers
165.       Enforcement of summonses and orders
166.       Publication
167.       By-laws
168.       Rules
Licence Appeals
169.       Disposition of appeal
Violations
Application
170.       Sections 172 to 206
171.       Definition of “person”
Classification
172.       Major or minor
173.       Major violations
174.       Minor violations
175.       Violation not an offence
Liability for Violations
176.       Direct and vicarious liability
177.       Limitation
178.       Excuses
179.       Continuing violations
Case Presentation Officers
180.       Designation
Procedure for Violations
Notices of Violation
181.       Notice of major violation
182.       Minor violation treated as major
183.       Person’s options — major violation
184.       Notice of minor violation
185.       Person’s options — minor violation
Hearing
186.       Hearing to be held
Written Representations
187.       Notification
188.       Case presentation officer’s statement
189.       Right to make written representations
190.       Case presentation officer notified
191.       Written representations
192.       Opportunity for additional written representations
193.       Tribunal to consider matter
Tribunal’s Decision and Sanctions
194.       Burden of proof
195.       Tribunal’s decision — major violation
196.       Tribunal’s decision — minor violation
197.       Decision final
198.       Sanctions — major violations
199.       Sanction — additional monetary penalty
Enforcement of Sanctions
200.       Debts due to Her Majesty
201.       Recovery of debts in civil courts
202.       Revocation and suspension of licences
203.       Revocation or suspension of licence
204.       Variation of orders
205.       Non-application of section 127 of the Criminal Code
Regulations
206.       Governor in Council
PART 6
REGULATIONS AND RELATED MATTERS
Regulations
207.       Governor in Council
Incorporation by Reference
208.       Externally produced material
209.       Defence
Exemptions from Statutory Instruments Act
210.       Not statutory instruments
PART 7
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEALS AND COMING INTO FORCE
Transitional Provisions
211.       Committees
212.       Allocations
213.       Nisga’a annual fishing plan
214.       Repeal of regulations
215.       Fees
Consequential Amendments
216.       Access to Information Act
217.       Arctic Waters Pollution Prevention Act
218-220.       Canada National Marine Conservation Areas Act
221-223.       Canadian Environmental Protection Act, 1999
224-226.       Coastal Fisheries Protection Act
227.       Contraventions Act
228.       Criminal Code
229.       Energy Efficiency Act
230-231.       Financial Administration Act
232.       First Nations Oil and Gas and Moneys Management Act
233.       Fishing and Recreational Harbours Act
234-235.       Freshwater Fish Marketing Act
236.       Marine Liability Act
237.       Northwest Territories Waters Act
238-239.       Nunavut Waters and Nunavut Surface Rights Tribunal Act
240.       Precious Metals Marking Act
241.       Privacy Act
242.       Public Service Superannuation Act
243.       Radiation Emitting Devices Act
244.       Species at Risk Act
245.       Textile Labelling Act
Repeals
246.       Atlantic Fisheries Restructuring Act
247.       Fisheries Act
248.       Fisheries Development Act
249.       Fisheries Improvement Loans Act
250.       Great Lakes Fisheries Convention Act
Coming into Force
251.       Order in council

2nd Session, 39th Parliament,
56 Elizabeth II, 2007
house of commons of canada
BILL C-32
An Act respecting the sustainable development of Canada’s seacoast and inland fisheries
Preamble
WHEREAS the powers and functions of the Minister of Fisheries and Oceans extend to seacoast and inland fisheries;
WHEREAS the conservation and protection of fish habitat and the prevention of the pollution of waters frequented by fish are essential elements of the management of Canada’s fisheries;
WHEREAS Parliament intends that Canada’s fisheries be managed sustainably, as a common property resource, to benefit present and future generations of Canadians;
WHEREAS Parliament wishes to provide a predictable, transparent and effective legislative framework for the management of Canada’s fisheries;
WHEREAS Parliament intends that this legislative framework be applied in a manner that fosters cooperation with the provinces and with bodies established under land claims agreements and is consistent with Canada’s international rights and obligations;
WHEREAS Parliament recognizes the importance of continued cooperation with prov- inces to which responsibility for the management of Canada’s inland fisheries has been delegated;
WHEREAS subsection 35(1) of the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada and Parliament recognizes the importance of fisheries to many aboriginal communities;
WHEREAS stable access to fisheries resources is central to the economic viability of fishing enterprises and of fish processors and to the well-being of communities that are depend- ent on fisheries;
WHEREAS Parliament is committed to maintaining the public character of the management of fisheries and fish habitat;
WHEREAS aboriginal, commercial and rec- reational fishers and their organizations, fish processors, communities, industry associations and the public desire a greater and more direct participation in decisions respecting the future of Canada’s fisheries, including the conservation and protection of fish habitat;
WHEREAS aboriginal, commercial and rec- reational fishers and their organizations desire a greater and more direct participation in the management of their harvesting of fish;
AND WHEREAS the application of effective deterrents to illegal fishing is essential to the sustainability of Canada’s fisheries;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Fisheries Act, 2007.
PURPOSE OF ACT
Purpose
2. The purpose of this Act is to provide for the sustainable development of Canada’s seacoast and inland fisheries, through the conservation and protection of fish and fish habitat and the proper management and control of fisheries.
INTERPRETATION
Definitions
3. The following definitions apply in this Act.
“Canadian”
« canadien »
“Canadian”, with respect to a fishing vessel, means that the fishing vessel is one
(a) in respect of which a certificate of registry has been issued under the Canada Shipping Act, 2001; or
(b) in respect of which a certificate of registry has not been issued under the Canada Shipping Act, 2001 or that is not registered, listed or otherwise recorded in a foreign state, but that is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) a corporation incorporated under the laws of Canada or a province, having its principal place of business in Canada, or
(iii) in the case of a vessel in respect of which a certificate of registry is not required to be issued under that Act, a person resident and domiciled in Canada.
“fish”
« poisson »
“fish” includes
(a) parts of fish;
(b) shellfish, crustaceans, other marine animals and any parts of any of them; and
(c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and other marine animals.
“fishery”
« pêche »
“fishery” means a fishery described in terms of
(a) a species of fish;
(b) a place where fishing may be carried on;
(c) a period during which fishing may be carried on;
(d) a particular method of fishing; or
(e) a particular type of fishing gear or equipment or fishing vessel used.
“fish habitat”
« habitat »
“fish habitat” means any area on which fish depend directly or indirectly in order to carry out their life processes, including spawning grounds, nursery areas, rearing areas, food supply areas and migration areas.
“fishing”
« pêche »
“fishing” means catching or attempting to catch fish by any means.
“fishing vessel”
« bateau de pêche »
“fishing vessel” means a vessel used or equipped for fishing, processing fish or transporting fish from fishing grounds, or a vessel that supplies such a vessel.
“fishway”
« passe migratoire »
“fishway” means any device, work or other thing that provides for the free passage of fish, including a fish pump, fish ladder, fish elevator or fish lock.
“holder”
« titulaire »
“holder” means any of the following that holds a licence:
(a) a person;
(b) a fishing vessel; or
(c) an organization.
In respect of a fishing vessel, it includes the owner or charterer of the vessel.
“marine plant”
« plante marine »
“marine plant” means an aquatic plant that is a saltwater plant, including benthic and detached algae, marine flowering plants, brown algae, red algae, green algae and phytoplankton.
“Minister”
« ministre »
“Minister” means the Minister of Fisheries and Oceans.
“obstruction”
« obstacle »
“obstruction” means any slide, dam or other thing impeding wholly or partially the free passage of fish.
“plant”
« plante »
“plant” includes parts of a plant.
“prescribed”
Version anglaise seulement
“prescribed” means prescribed by the regulations.
“Tribunal”
« Office »
“Tribunal” means the Canada Fisheries Tribunal established under section 149.
“vehicle”
« véhicule »
“vehicle” means any conveyance that may be used for transportation, including a vessel or an aircraft.
HER MAJESTY
Binding on Her Majesty
4. This Act is binding on Her Majesty in right of Canada or a province.
TERRITORIAL OPERATION
Application
5. This Act applies, in addition to its application to Canada, to
(a) the exclusive economic zone of Canada; and
(b) Canadian fishing vessels and Canadian citizens on any area of the sea other than an area that forms part of the territorial sea or internal waters of another state.
APPLICATION PRINCIPLES
Principles
6. The Minister and every person engaged in the administration of this Act or the regulations must
(a) take into account the principles of sustainable development and seek to apply an ecosystem approach in the management of fisheries and in the conservation and protection of fish and fish habitat;
(b) seek to apply a precautionary approach such that, if there is both high scientific uncertainty and a risk of serious harm, they will not use a lack of adequate scientific information as a reason for failing to take, or for postponing, cost-effective measures for the conservation or protection of fish or fish habitat that they consider proportional to the potential severity of the risk;
(c) take into account scientific information in the management of fisheries and in the conservation and protection of fish and fish habitat;
(d) seek to manage fisheries and conserve and protect fish and fish habitat in a manner that is consistent with the constitutional protection provided for existing aboriginal and treaty rights of the aboriginal peoples of Canada;
(e) consider traditional knowledge, to the extent that it has been shared with them, with respect to the management of fisheries and the conservation and protection of fish and fish habitat;
(f) endeavour to act in cooperation with other governments and with bodies established under land claims agreements; and
(g) encourage the participation of Canadians in the making of decisions that affect the management of fisheries and the conservation or protection of fish or fish habitat.
AGREEMENTS WITH PROVINCES
Minister may enter into agreements
7. (1) The Minister may, subject to the regulations, enter into an agreement with a province to further the purpose of this Act, including an agreement with respect to one or more of the following:
(a) facilitating cooperation between the parties to the agreement, including facilitating joint action in areas of common interest, reducing overlap between their respective programs and otherwise harmonizing those programs;
(b) facilitating enhanced communication between the parties, including the exchange of scientific and other information; and
(c) facilitating public consultation or the entry into arrangements with third-party stakeholders.
Contents of agreement
(2) An agreement may establish
(a) the roles, powers and functions of the parties;
(b) programs and projects, including programs and projects described in section 11;
(c) principles and objectives of the parties’ respective programs and projects;
(d) standards, guidelines and codes of practice to be followed by the parties in the administration of their respective programs and projects;
(e) processes for policy development, operational planning and communication between the parties, including the exchange of scientific and other information;
(f) the administrative structures that will be used to carry out the agreement’s objectives; and
(g) the power of the parties to create committees and public panels and to conduct public consultation.
Regulations
(3) The Governor in Council may make regulations establishing the conditions under which the Minister may enter into or renew an agreement, including procedures for entering into or renewing the agreement.
Agreements to be published
8. (1) The Minister must publish an agreement entered into under section 7 in the manner that the Minister considers appropriate.
Termination
(2) The agreement terminates five years after the day on which it takes effect, but may be terminated earlier by either party giving the other at least three months’ notice.
Renewal
(3) However, the agreement may be renewed on the agreement of the parties before its termination, and subsection (2) applies to the agreement as renewed. The Minister must publish a notice of the renewal in the manner that the Minister considers appropriate.
Declaration of equivalent provisions
9. (1) If an agreement entered into under section 7 provides that there is in force a provision under the laws of the province that is equivalent to a provision of the regulations, the Governor in Council may, on the recommendation of the Minister, by order declare that the provision of the regulations does not apply in the province.
Non-application of provisions
(2) Except with respect to Her Majesty in right of Canada, the provision of the regulations that is set out in the order does not apply within that province.
Revocation
(3) The Governor in Council may revoke the order on the recommendation of the Minister if the Governor in Council is satisfied that the provision under the laws of the province is no longer equivalent to the provision of the regulations set out in the order, or that it is not being adequately applied or enforced.
Notice to province
(4) The Governor in Council may not revoke the order unless the Minister has given notice of the proposed revocation to the province.
Order ceases to have effect
(5) The order ceases to have effect either when it is revoked by the Governor in Council or when the agreement to which the order relates terminates or is terminated.
Report to Parliament
10. The Minister must, as soon as possible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration of sections 7 to 9.
PROGRAMS AND PROJECTS
Objectives
11. The Minister may undertake programs and projects, whose objectives may include any of the following:
(a) improving the abilities of a fishing enterprise or an organization, including a fishers’ union or an aboriginal organization, with regard to business management and the management of its harvesting of fish;
(b) improving the fishing techniques of an organization’s members by means that include promoting training and mentoring in those techniques;
(c) improving the economic viability of a fishery or of the aquaculture sector;
(d) promoting adjustment in a fishery, including industry restructuring;
(e) promoting conservation or restoration of fish habitat; and
(f) promoting the productivity or the sustainability of a fishery or fish habitat.
Financial assistance
12. (1) The Minister may, in order to facilitate the implementation of a program or project,
(a) make grants and contributions;
(b) make loans; and
(c) guarantee the repayment of any financial obligation, or provide loan insurance or credit insurance in respect of such an obligation.
Regulations
(2) The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations respecting such grants, contributions, loans, guarantees and insurance.
Agreements, etc.
13. In exercising powers and performing functions under sections 11 and 12, the Minister may
(a) enter into agreements, arrangements or transactions — including an agreement under section 7 — with any person, body or government of a province or with another minister, a department or an agency of the Government of Canada; and
(b) with the approval of the Minister of Finance, requisition amounts in respect of such an agreement, arrangement or transaction to be paid out of the Consolidated Revenue Fund.
ADVISORY PANELS
Minister may establish panels
14. (1) The Minister may, in order to carry out the purpose of this Act or the regulations, establish advisory panels and provide for their membership, functions and operation.
Remuneration of members
(2) Members of a panel established under subsection (1) are to be paid any amount that is fixed by the Governor in Council for each day that they attend any of the panel’s meetings.
Expenses
(3) The members are also entitled to be reimbursed, in accordance with Treasury Board directives, for the travel, living and other expenses incurred in connection with their work for the panel while absent from their ordinary place of work, in the case of full-time members, or from their ordinary place of residence, in the case of part-time members.
INFORMATION
Persons to provide information
15. (1) The Minister may, for the purpose of conducting research, creating an inventory of data, formulating objectives and codes of practice, issuing guidelines or assessing or reporting on the state of fisheries or fish habitat, require any person to provide the Minister with any information that is in that person’s possession, or to which the person may reasonably be expected to have access, that the Minister considers relevant to
(a) the conservation or protection of fish or fish habitat;
(b) the proper management or control of fisheries or the sustainable development of aquaculture; or
(c) the prevention of pollution of waters frequented by fish.
Other recipient
(2) The Minister may, in accordance with an agreement with a province entered into under section 7, require the person to submit the information to the government of that province.
Conditions respecting access to information
(3) Subsection (2) does not apply unless the agreement sets out conditions respecting access by the government of that province to all or part of the information that the person is required to submit.
Compliance with notice
(4) Every person who is required to provide information under subsection (1) or (2) must provide it within the time and in the manner that the Minister specifies.
Extension of time
(5) The Minister may, on request in writing from any person who is required to provide information under subsection (1) or (2), extend the specified time.
Preservation of information
(6) The Minister may require the person to keep copies of the required information, together with any calculations, measurements and other data on which the information is based, and may also specify where, how and how long they are to be kept. However, the period for which they are to be kept may not exceed three years from the day on which the Minister makes the requirement under subsection (1).
Inconsistency with regulations
(7) If there is an inconsistency between any of the Minister’s requirements to a person under this section and any provision of the regulations made under paragraph 207(d) or (e), the requirements prevail to the extent of the inconsistency.
FEES
Services or use of facilities
16. (1) The Minister may, subject to any regulations that the Treasury Board may make for the purposes of this section, fix the fees to be paid for a service or the use of a facility provided under this Act.
Amount not to exceed cost
(2) Fees that are fixed under subsection (1) may not exceed the cost to Her Majesty in right of Canada of providing the service or the use of the facility.
Products, rights and privileges
17. The Minister may, subject to any regulations that the Treasury Board may make for the purposes of this section, fix fees in respect of products, rights and privileges provided under this Act.
Regulatory processes, etc.
18. (1) The Minister may, subject to any regulations that the Treasury Board may make for the purposes of this section, fix fees in respect of regulatory processes or approvals provided under this Act.
Amount
(2) Fees that are fixed under subsection (1) may not in the aggregate exceed an amount that is sufficient to compensate Her Majesty in right of Canada for any reasonable outlays incurred by Her Majesty in right of Canada for the purpose of providing the regulatory processes or approvals.
Consultation
19. (1) Before fixing a fee under this Act, the Minister must consult with any persons or bodies that the Minister considers to be interested in the matter.
Publication
(2) The Minister shall, within 30 days after the day on which a fee is fixed under this Act, publish the fee in the Canada Gazette and by any appropriate electronic or other means that the Treasury Board may authorize by regulation.
Reference to Scrutiny Committee
(3) Any fee fixed under this Act shall stand referred to the Committee referred to in section 19 of the Statutory Instruments Act to be reviewed and scrutinized as if it were a statutory instrument.
Power to make regulations
20. The Treasury Board may make regulations for the purposes of any of sections 16 to 19.
Proceeds of fees — provinces
21. Any fees charged in relation to the issuance of a licence by an employee of a provincial government belong to Her Majesty in right of that province.
LIABILITY
Immunity
22. (1) Persons engaged in the administration or enforcement of this Act or the regulations are not personally liable for anything done or omitted to be done in good faith in exercising their powers or performing their functions.
Crown not relieved
(2) Subsection (1) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve Her Majesty in right of Canada of liability in respect of a tort or fault to which Her Majesty in right of Canada would otherwise be subject.
DELEGATION
Delegation to provincial minister
23. The Governor in Council may delegate, subject to any conditions that the delegation specifies, any or all of the powers conferred on the Minister by sections 15 to 18 or by Parts 1 and 3, or by the regulations made under any of those sections or those Parts, to a minister of a provincial government responsible for fisheries.
Interpretation Act
24. Nothing in this Act, except subsection 33(4) and paragraph 47(3)(b), limits the application of subsection 24(2) of the Interpretation Act to this Act.
PART 1
FISHERIES MANAGEMENT AND CONSERVATION AND PROTECTION OF FISH
Considerations
Conservation and protection of fish and fish habitat
25. (1) In exercising the powers under section 27 or 37 in relation to a fishery, the Minister must first take into account the need to conserve and protect fish and fish habitat.
Further considerations
(2) The Minister must then also take into account
(a) the compliance of fishers in the fishery with this Act or the regulations;
(b) the importance to fishers of secure access to the fishery and of allocation stability;
(c) fairness to individuals, between communities and between regions;
(d) fishers’ adjacency to the fishery;
(e) fishers’ historical participation in the fishery;
(f) economic viability in the fishery;
(g) the best use of fish in order to fulfill the fishery’s economic, social and cultural potential;
(h) the importance of maintaining public access to the fishery; and
(i) any other consideration that the Minister considers relevant.
Licences
Persons authorized to fish under a licence
26. In addition to the holder, persons who are authorized to fish under the authority of a licence are the following:
(a) persons who are designated to fish under the authority of a licence held by an organization; and
(b) members of the crew of a fishing vessel operated by a holder or by a designated person referred to in paragraph (a), including the master or anyone else on board the fishing vessel who is in command or charge of it.
Regulations — licence applications and issuance
27. (1) The Minister may make regulations respecting applications for licences and their issuance, including regulations respecting eligibility criteria.
Interim orders
(2) If the Minister considers that exigent circumstances justify doing so for the conservation or protection of fish or fish habitat or the proper management or control of fisheries, the Minister may make an interim order containing any provision that may be contained in a regulation made under subsection (1).
Order has effect
(3) An interim order has effect from the time that it is made.
Inconsistency with regulations
(4) If there is an inconsistency between an interim order and a regulation made under subsection (1), the interim order prevails to the extent of the inconsistency.
Publication
(5) The Minister must publish an interim order in the Canada Gazette within 30 days after the day on which it is made.
Cessation of effect
(6) An interim order ceases to have effect on the earlier of
(a) the day it is repealed, and
(b) six months after the day on which it is made.
Designation of licensing officers
28. The Minister may designate any individ- uals or class of individuals as licensing officers for the purposes of this Act or the regulations, and may restrict in any manner that the Minister considers appropriate the powers that a licens- ing officer may exercise under this Act.
Issuance of licences
29. A licensing officer may, in accordance with the regulations or interim orders made under section 27, issue licences for fishing or for other activities involving fish or aquatic plants.
Nature of licences
30. (1) A licence does not confer any right of property.
Exclusive right of fishing
(2) A licence does not confer the right to fish in any waters that are subject to any exclusive right of fishing existing at law.
Refusal to issue licences
31. A licensing officer may refuse to issue a licence to an applicant who meets the eligibility criteria set out in the regulations or interim orders made under section 27 if
(a) the applicant has not submitted a record, book, other document or other information
(i) that was required to be submitted as a condition of a licence held by the applicant in a previous year,
(ii) that the Minister required the applicant to provide under section 15, or
(iii) that was required by the regulations to be submitted in a previous year;
(b) the licensing officer has reasonable grounds to believe that the applicant has, with respect to the licence, entered into an agreement whose purpose is contrary to the regulations or interim orders made under section 27;
(c) the applicant is unable to provide evidence that they have paid all the amounts that they are required to pay under paragraph 43(2)(i); or
(d) the applicant has not paid an amount that constitutes a debt under section 129 or 200 or has not complied with an order made under subsection 116(1), section 117, subsection 198(1) or section 199.
Appeals to Tribunal
32. If a licensing officer refuses to issue a licence or does not issue one within a reasonable period after the application has been made, and the licence is prescribed by regulations made under paragraph 206(1)(a) or belongs to a class prescribed under that paragraph, the applicant may appeal to the Tribunal within the prescribed period.
Conditions
33. (1) A licensing officer may make a licence subject to any conditions that belong to a class of conditions established by the regulations.
Licences held by organizations
(2) If the licence is to be issued to an organization, a licensing officer may make the licence subject to conditions respecting the designation of persons who may fish under the authority of the licence and the fishing vessels that may be used to do so, as well as respecting any other matter concerning designations, including the method of designation and the person or persons responsible for making the designations.
Change of conditions by licensing officer
(3) After the issuance of a licence, a licens- ing officer may, either on the officer’s own initiative if required for the conservation or protection of fish or fish habitat or on the holder’s request, vary or rescind in whole or in part any conditions of the licence or add conditions to it.
Change of conditions by Minister
(4) After the issuance of a licence, the Minister, or a Regional Director General or Associate Regional Director General of the Department of Fisheries and Oceans who is authorized by the Minister to do so, may, for the proper management or control of fisheries, vary or rescind in whole or in part any conditions of the licence or add conditions to it.
Duty to comply with conditions
(5) The holder and any other person fishing under the authority of a licence must comply with the conditions of the licence.
Prescribed licences prevail over regulations
34. If there is an inconsistency between a condition of a licence that belongs to a class prescribed under paragraph 55(1)(q) and a provision of the regulations that is prescribed under that paragraph, the condition of the licence prevails to the extent of the incon- sistency.
Revocation
35. (1) A licence issued to a Canadian fishing vessel is revoked if the vessel ceases to be Canadian.
Revocation
(2) A licence issued on the condition that the fishing vessel that is used to fish under the authority of the licence be a Canadian fishing vessel is revoked if the vessel used ceases to be Canadian, or if fishing is done under the authority of the licence by means of another vessel and that vessel is not Canadian.
Licence to be returned
(3) If a licence is revoked under this section, the holder must return it without delay to a licensing officer.
Leases
Issuance of leases
36. The Minister may issue leases for aquaculture purposes.
Allocations
Allocation among groups and communities
37. (1) For any species of fish that is not managed by a province, the Minister may by order, with respect to any area that the order specifies and subject to any condition that the order specifies, allocate any combination of quantities or shares of the fish that may be fished among any groups or communities that the order specifies, including
(a) fishers using a particular method of fishing or type of fishing gear or equipment;
(b) fishers using fishing vessels of a partic- ular class; and
(c) holders of a particular class of licence.
Duration
(2) The maximum duration of an allocation is 15 years.
Notice
(3) The Minister must, before making, amending or cancelling an allocation order,
(a) publish a notice of the intention to do so in the manner that the Minister considers appropriate; and
(b) if the Minister has established under section 14 an advisory panel whose mandate includes the fishery in question, refer the matter to the panel for its consideration, along with any instructions that the Minister considers relevant.
Panel’s report
(4) The panel must report to the Minister within a reasonable time, and the Minister must publish the panel’s report in the manner that the Minister considers appropriate before making, amending or cancelling the allocation order.
Exigent circumstances
(5) The Minister may make, amend or cancel an allocation order without complying with subsection (3) if the Minister considers that exigent circumstances justify doing so.
Publication
(6) The Minister must publish an allocation order in the manner that the Minister considers appropriate.
Allocation given effect
(7) The Minister and all licensing officers must take reasonable steps to give effect to an allocation order.
Crown not liable
(8) An allocation order does not give rise to any recourse against Her Majesty in right of Canada.
Minister’s powers not limited
(9) Nothing in this section limits the Minister’s powers to take any measure that the Minister considers necessary for the conservation or protection of fish or fish habitat, including the power to make a fisheries management order.
Fisheries Management Orders
Minister may make order
38. (1) The Minister may make a fisheries management order with respect to any species of fish or marine plant in any area specified in the order
(a) prohibiting fishing for fish of that species during the close time set out in the order;
(b) prohibiting, during any period specified in the order,
(i) the catching and retaining of more fish of that species than the quota set out in the order, or
(ii) the catching and retaining of any fish of that species except in accordance with the size or weight limits set out in the order; or
(c) prohibiting the harvesting of marine plants of that species during the close time set out in the order.
Application of order
(2) A fisheries management order may provide that it applies only to
(a) a particular class of persons specified in the order, including
(i) persons who fish or harvest marine plants using a particular method or a particular type of gear or equipment, or
(ii) persons who use fishing vessels of a particular class; or
(b) holders of a particular class of licence specified in the order.
Duty to comply
39. Every person or holder to whom a fisheries management order applies must comply with it.
Setting gear during close time
40. (1) Subject to the regulations, no person or holder to whom a fisheries management order applies shall set or leave any fishing gear or equipment used to fish for a species of fish in any waters during a close time set out in the order for that species in those waters.
Officer’s discretion
(2) However, a fishery officer may permit fishing gear or equipment referred to in subsection (1) to remain in the water, for any period that the officer fixes, after the start of the close time.
Notice
41. (1) Notice of a fisheries management order must be given in the prescribed manner to the persons or holders to whom it applies.
If notice not given
(2) If notice is not given, then the contravention of a fisheries management order or of section 40 is not an offence or violation unless, at the time of the contravention, reasonable steps had been taken to bring the substance of the order to the notice of those persons or holders to whom it applies.
Inconsistency with licence conditions
42. If there is an inconsistency between a fisheries management order and a condition of a licence, the fisheries management order prevails to the extent of the inconsistency.
Fisheries Management Agreements
Minister may enter into agreement
43. (1) The Minister may, to further the conservation or protection of fish, the sustainable development of a fishery or the participation of Canadians in fisheries management, enter into a fisheries management agreement with an organization that the Minister considers to be representative of a class of persons or holders.
Contents of agreement
(2) An agreement may establish matters including
(a) the persons and holders to whom the agreement applies;
(b) the roles, powers and functions of the Minister and the organization;
(c) planning and consultation processes for the fishery;
(d) conservation, protection or management rules for the fishery;
(e) conservation, protection or management programs and projects for the fishery, including programs and projects referred to in section 11;
(f) arrangements for licence administration with respect to the fishery, including quota trades;
(g) funding arrangements with respect to the management of the fishery;
(h) the fees payable to Her Majesty in right of Canada for licences issued for the fishery;
(i) amounts that the persons and holders to whom the agreement applies are required to pay to the organization or to a third party;
(j) if a licence is issued to the organization, authority for the organization to designate persons who may fish under the authority of the licence on its behalf and the fishing vessels that may be used to do so;
(k) the conditions under which the agreement may be varied or terminated; and
(l) any other matter concerning the conservation or protection of fish or the sustainable development or management of a fishery.
Sanctions
(3) An agreement may, for the purposes of Part 5, establish guidelines to be used by the Tribunal when it makes an order in a proceeding in respect of a major violation against a person or holder to whom the agreement applies.
Conservation, protection or management rules
(4) If a fisheries management agreement establishes conservation, protection or management rules under paragraph (2)(d), those rules are conditions of every licence issued to a holder to whom the agreement applies.
Publication
44. (1) The Minister must publish a fisheries management agreement in the manner that the Minister considers appropriate.
If no publication
(2) The contravention of conservation, protection or management rules established under paragraph 43(2)(d) is not an offence or violation unless, at the date of the contravention, the fisheries management agreement had been published under subsection (1).
Names of holders
(3) An agreement published under subsection (1) may include the names and addresses of the persons and holders to whom the agreement applies.
Inconsistency with regulations or fees
45. If there is an inconsistency between conservation, protection or management rules established under paragraph 43(2)(d) and a provision of the regulations, or between fees established under paragraph 43(2)(h) and fees fixed under sections 16 to 18, the fisheries management agreement prevails to the extent of the inconsistency.
Minister’s powers not limited
46. A fisheries management agreement does not limit the Minister’s powers to take any measure that the Minister considers necessary for the conservation or protection of fish or fish habitat, including the power to make a fisheries management order.
Nisga’a Annual Fishing Plan
Definition of “fishing plan”
47. (1) In this section, “fishing plan” means a Nisga’a annual fishing plan, as defined in the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act, that is approved, or varied and approved, by the Minister in accordance with that Agreement.
Contravention of fishing plan
(2) If a fishing plan stipulates that this subsection applies to certain of its provisions relating to persons engaged in fishing, harvesting, sale or related activities, no person shall contravene any of those provisions.
Conditions of prosecution
(3) No proceedings may be commenced in respect of an offence for the contravention of subsection (2)
(a) except in accordance with an agreement, made under paragraph 93 of the Fisheries Chapter of the Nisga’a Final Agreement, concerning enforcement of federal laws or Nisga’a laws; or
(b) unless the Minister, or a person appointed to a position in the Department of Fisheries and Oceans who is authorized by the Minister, considers such proceedings to be necessary to ensure compliance with the fishing plan.
Prohibitions
Killing of fish
48. (1) No person shall kill fish by any means other than fishing.
Exception
(2) No person contravenes subsection (1) by killing fish
(a) in accordance with the regulations;
(b) as authorized by the Minister to do so; or
(c) as a result of doing anything that is authorized, otherwise permitted or required under this Act.
Fishing in areas subject to lease
49. No person shall fish in any area to which a lease issued under section 36 applies, or set in such an area any fishing gear or equipment, except by permission of the leaseholder, and no person shall interfere with activities authorized by the lease.
Fishing gear or equipment
50. No person shall
(a) set or use fishing gear or equipment in such a manner that it obstructs or could obstruct the navigation of boats and vessels; or
(b) without justification, destroy, damage or interfere with fishing gear or equipment that is lawfully set.
Main channel not to be obstructed
51. Unless otherwise authorized by the Minister, one third of the width of any river or stream and two thirds of the width of the main channel at low tide in every tidal stream must be left open, and no fishing gear or equipment or other thing shall be set or left in the waters that are to be left open.
Fishing gear not to obstruct fish
52. (1) No person shall set, use or leave in any waters, whether subject to any exclusive right of fishing existing at law or not, any fishing gear or equipment that unduly obstructs the free passage of fish.
Removal
(2) The Minister may order the removal of or remove any fishing gear or equipment that, in the opinion of the Minister, unduly obstructs the free passage of fish.
Fishways and canals
53. No person shall fish within 25 m upstream or downstream from the upper or lower entrance, respectively, to any fishway, canal, obstruction or leap.
Unlawful sale or possession
54. (1) No person shall purchase, sell or possess any fish that has been caught and retained in contravention of this Act or the regulations.
Exception
(2) Subsection (1) does not apply in respect of fish that has been seized under this Act.
Regulations
Governor in Council
55. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations
(a) respecting the proper management or control of fisheries;
(b) respecting the conservation or protection of fish;
(c) respecting the catching, loading, landing, handling, transporting, possession, processing, release or disposition of fish;
(d) prohibiting the selling or buying of fish;
(e) respecting the export or import of fish or the bringing of fish from any province to any other province;
(f) respecting the operation of fishing vessels;
(g) authorizing the killing of fish by means other than fishing;
(h) respecting the use of fishing gear and equipment, including the gear and equipment that may be set or left during a close time, and respecting any conditions relating to fishing gear and equipment;
(i) respecting the marking, identification and tracking of fishing vessels;
(j) respecting the designation of persons as observers and their functions and methods of observation;
(k) prescribing persons who have obligations with respect to observers;
(l) respecting those persons’ obligations with respect to observers, including the obligation to
(i) allow observers to enter fishing vessels or fish landing stations that the persons own or of which the persons have the charge, management or control,
(ii) allow them to monitor fishing and fish landing activities, examine any fishing gear or equipment found there, examine any fish found there and take samples of it, and
(iii) allow them to examine any records, books or other documents, including documents in electronic form, found there, make copies of them or take extracts from them;
(m) prohibiting the doing of any of the following without a licence:
(i) fishing,
(ii) harvesting marine plants, and
(iii) any other activities involving fish or aquatic plants whose prohibition is required for the purposes of this Part;
(n) establishing classes of licences;
(o) prescribing the period during which the applicant for a licence may appeal to the Tribunal under section 32;
(p) establishing the classes of conditions that may be attached to a licence under subsection 33(1), including classes of conditions concerning the proper management or control of fisheries or the conservation or protection of fish or fish habitat;
(q) prescribing classes of licences whose conditions prevail over prescribed provisions of the regulations, and prescribing those provisions, for the purposes of section 34;
(r) respecting the terms of a lease;
(s) if a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons engaged in the administration or enforcement of this Act or the regulations to vary the close time, fishing quota or limit in respect of that area or any portion of it;
(t) respecting the entering into of fisheries management agreements, including their ratification; and
(u) respecting the harvesting of marine plants in Canadian waters that are not within a province.
Repeal
(2) Paragraph (1)(s) is repealed on a day to be fixed by order of the Governor in Council.
PART 2
CONSERVATION AND PROTECTION OF FISH AND FISH HABITAT, AND POLLUTION PREVENTION
Interpretation
Definitions
56. The following definitions apply in this Part.
“deleterious substance”
« substance nocive »
“deleterious substance” means
(a) any substance — including water that has been treated, processed or changed by heat or other means from a natural state — that, if added to any waters, would be deleterious, or likely to be deleterious, to fish or fish habitat or to the use by humans of fish that frequent those waters;
(b) any prescribed substance or any substance of a prescribed class of substances;
(c) any water that contains any prescribed substance, or any substance of a prescribed class of substances, in a quantity or concentration that equals or exceeds a quantity or concentration that is prescribed for that substance or class of substances; or
(d) any water that has been subjected to a prescribed treatment, process or change.
“deposit”
« rejet »
“deposit” means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing.
Conservation and Protection of Fish and Fish Habitat
Studies, analyses, samples and evaluations
57. (1) If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish habitat must, on the Minister’s request and within the period specified by the Minister, conduct studies, analyses, samples and evaluations, and provide the Minister with any document or other information relating to them, to the obstruction or other thing or to the fish or fish habitat that is affected or is likely to be affected by the obstruction or other thing.
Removal or circumvention of obstructions
(2) If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish habitat must, on the Minister’s request, within the period specified by the Minister and in accordance with any specifications of the Minister,
(a) remove the obstruction or thing;
(b) construct a fishway;
(c) implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water;
(d) install a fish stop or a diverter to prevent the destruction of fish or to assist in the free passage of fish;
(e) install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal;
(f) maintain the flow of water that the Minister considers sufficient to permit the free passage of fish; or
(g) permit the escape, into the water below the obstruction or thing, at all times of the quantity of water that the Minister considers sufficient for the safety of fish or for the flooding of fish habitat to an appropriate depth.
Modification, repair and maintenance
(3) The owner or person referred to in subsection (2) must, with regard to anything mentioned in that subsection, on the Minister’s request
(a) during the thing’s construction, implementation, installation, modification or repair, make any provision that the Minister considers necessary for the free passage of fish or the protection of fish or fish habitat;
(b) operate and maintain the thing in a good and effective condition and in accordance with any specifications of the Minister; and
(c) modify or repair the thing in accordance with any specifications of the Minister.
Prohibitions
(4) No person shall
(a) do anything to prevent or unduly obstruct the free passage of fish;
(b) damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s request; or
(c) damage, remove or permit the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request, unless the removal is required for modification, repair or maintenance.
Devices to prevent escape of fish
58. (1) Despite paragraph 57(4)(a), the Minister may authorize the installation and maintenance of fish guards, screens, coverings, netting or other devices in streams to prevent fish held for breeding from escaping or for any other purpose that the Minister considers to be in the public interest.
Prohibition
(2) No person shall damage, remove or authorize the removal of such a fish guard, screen, covering, netting or other device.
Alteration, disruption or destruction of fish habitat
59. (1) No person shall carry on any work or undertaking that results in the harmful alteration or disruption, or the destruction, of fish habitat.
Exception
(2) No person contravenes subsection (1) if
(a) the alteration, disruption or destruction is authorized by the Minister and is done in accordance with the conditions established by the Minister; or
(b) the work or undertaking is carried on in accordance with the conditions set out in the regulations or with any other authorization issued under this Act.
Leases not authorizations
(3) For the purposes of paragraph (2)(b), a lease issued under section 36 is not an authorization.
Pollution Prevention
Throwing overboard of certain substances prohibited
60. (1) No person shall
(a) throw overboard ballast, stones or other substances that are detrimental to fish habitat in any waters frequented by fish;
(b) leave or deposit or cause to be left or deposited, on the shore or bank of any water or on the beach between high and low water mark, fish remains or fish offal; or
(c) leave decayed or decaying fish in any net or other fishing gear or equipment.
Deposit of deleterious substance prohibited
(2) Subject to subsection (3), no person shall deposit or permit the deposit of a deleterious substance in waters frequented by fish or in any place under any conditions where the delete- rious substance, or any other deleterious substance that results from the deposit of the deleterious substance, might enter such waters.
Deposits authorized by regulation
(3) No person contravenes subsection (2) by depositing or permitting the deposit of, in any waters frequented by fish or place,
(a) waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to those waters or that place made by the Governor in Council under any Act other than this Act; or
(b) a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or under regulations applicable to those waters or that place, or to any work or undertaking or class of works or undertakings, made by the Governor in Council under any of paragraphs 63(d) to (i).
Directions by the Minister
(4) A person authorized to deposit a delete- rious substance by or under regulations made under any of paragraphs 63(d) to (i) must, when directed in writing by the Minister, despite any regulations made under paragraph 63(h) or any conditions set out in an authorization made under paragraph 63(i), conduct any sampling, analyses, tests, measurements or monitoring, install or operate any equipment or comply with any procedures, and report any information, that may be required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized.
Works and Undertakings
Duty to provide information
61. (1) Every person who carries on or proposes to carry on a work or undertaking must, on the Minister’s request, or — in the prescribed circumstances — without request and in the prescribed manner, provide the Minister with the information referred to in subsection (2) if the work or undertaking results or is likely to result in
(a) the alteration or disruption — whether harmful or not — or the destruction of fish habitat; or
(b) the deposit of a deleterious substance as described in subsection 60(2).
Information to be provided
(2) The information that is to be provided under subsection (1) is any plans, specifications, studies, descriptions of procedures, results of analyses or of samples, schedules or other information relating to the work or undertaking, or to the place that is or is likely to be affected by the work or undertaking, that will enable the Minister to determine
(a) whether the work or undertaking results or is likely to result in
(i) a harmful alteration or disruption or a destruction of fish habitat that is not authorized under this Part, or
(ii) a deposit of a deleterious substance as described in subsection 60(2) that is not authorized under this Part; and
(b) what measures, if any, would prevent that result or mitigate its effects.
Minister’s powers
(3) If, after reviewing any information provided under subsection (1) and giving the person who provided it a reasonable opportunity to make representations, the Minister is of the opinion that the person is contravening or is likely to contravene subsection 59(1) or 60(2), then in order to prevent that contravention or to mitigate its effects the Minister may by order, subject to the regulations, do any of the following:
(a) require any modifications or additions to the work or undertaking or to any plans, specifications, procedures or schedules relating to it that the Minister considers necessary in the circumstances;
(b) restrict the operation of the work or undertaking; or
(c) with the approval of the Governor in Council, direct the closure or cessation of the work or undertaking for any period that the Minister considers necessary in the circumstances.
Consultation with provinces
(4) Unless the Minister considers that immediate action is necessary, the Minister must, before making an order under subsection (3), provide a reasonable opportunity for the governments of any provinces that the Minister considers to be interested, and any departments or agencies of the Government of Canada that the Minister considers appropriate, to make representations with respect to the proposed order.
Reports and Corrective Measures
Duty to notify
62. (1) Every person must without delay notify an inspector, a fishery officer or a prescribed authority of a harmful alteration or disruption or a destruction of fish habitat that is not authorized under this Part, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a) owns or has the charge, management or control of the work or undertaking that resulted in the alteration, disruption or destruction of fish habitat or the danger of the alteration, disruption or destruction; or
(b) causes or contributes to the occurrence or the danger of the occurrence.
Duty to notify
(2) Every person must without delay notify an inspector, a fishery officer or a prescribed authority of a deposit of a deleterious substance as described in subsection 60(2) that is not authorized under this Part, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a) owns or has the charge, management or control of
(i) the deleterious substance, or
(ii) the work or undertaking that resulted in the deposit or the danger of the deposit; or
(b) causes or contributes to the occurrence or the danger of the occurrence.
Duty to take corrective measures
(3) Any person described in paragraph (1)(a) or (b) or (2)(a) or (b) must, as soon as possible in the circumstances, take all reasonable meas- ures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.
Report
(4) As soon as the circumstances allow after the occurrence or after learning of the danger of the occurrence, the person must, subject to the regulations, provide the inspector, fishery officer or prescribed authority with a written report on the occurrence or danger of the occurrence.
Corrective measures
(5) If an inspector or fishery officer, whether or not they have been notified under subsection (1) or (2) or provided with a report under subsection (4), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (3), the inspector or fishery officer may, subject to subsection (6) and the regulations, take any of those measures at the expense of any person described in paragraph (1)(a) or (b) or (2)(a) or (b) or require such a person to take them at that person’s expense.
Inconsistency
(6) Any requirement of an inspector or fishery officer under this section that is inconsistent with any direction of a pollution prevention officer under the Canada Shipping Act, 2001 is void to the extent of the inconsistency.
Exception
(7) Subsections (1) to (5) do not apply in respect of any deposit of a deleterious substance that constitutes a discharge — within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001 — caused by or otherwise attributable to a vessel.
Regulations
Governor in Council
63. The Governor in Council may make regulations for the conservation and protection of fish and fish habitat and the prevention of the obstruction or pollution of any waters frequented by fish, including regulations
(a) prescribing, for the purposes of the definition “deleterious substance” in section 56,
(i) substances or classes of substances,
(ii) quantities or concentrations of substances or classes of substances in water, and
(iii) treatments, processes and changes in water;
(b) respecting applications to the Minister for the establishment of conditions referred to in paragraph 59(2)(a);
(c) respecting conditions referred to in paragraph 59(2)(b), including prescribing classes of works and undertakings that may be subject to those conditions;
(d) prescribing the deleterious substances or classes of those substances that are authorized to be deposited despite subsection 60(2);
(e) prescribing the waters or places or classes of waters or places where any deleterious substances or classes of those substances referred to in paragraph (d) are authorized to be deposited;
(f) prescribing the works or undertakings or classes of works or undertakings in the course or conduct of which any deleterious substances or classes of those substances referred to in paragraph (d) are authorized to be deposited;
(g) prescribing the quantities or concentrations of any deleterious substances or classes of those substances referred to in paragraph (d) that are authorized to be deposited;
(h) prescribing the conditions under which, and the requirements subject to which, any deleterious substances or classes of those substances referred to in paragraph (d) or any quantities or concentrations of those delete- rious substances or classes of those substances are authorized to be deposited in any waters or places or classes of waters or places referred to in paragraph (e) or in the course or conduct of any works or undertakings or classes of works or undertakings referred to in paragraph (f);
(i) prescribing the persons who may authorize the deposit of any deleterious substances or classes of those substances in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization;
(j) prescribing the circumstances and manner in which the information set out in subsection 61(2) is to be provided to the Minister without request under subsection 61(1);
(k) prescribing the circumstances and manner in which the Minister may make orders under subsection 61(3) and the terms of the orders;
(l) prescribing authorities for the purposes of subsections 62(1), (2) and (4);
(m) respecting the manner in which the report referred to in subsection 62(4) is to be made, and the information it is to contain;
(n) respecting the manner in which inspectors and fishery officers may take any measures or require measures to be taken under subsection 62(5), and the conditions to which those measures or requirements are subject; and
(o) prescribing the circumstances and manner in which any measures taken or requirement that measures be taken under subsection 62(5) may be reviewed, rescinded or varied.
Civil Liability
Liability
64. (1) The persons described in subsection (2) are liable for all costs reasonably incurred by Her Majesty in right of Canada or a province relating to the taking of any measures to prevent either or both of the following occurrences, if there is a serious and imminent danger of such an occurrence, or, if it does actually occur, to counteract, mitigate or remedy any adverse effects that result or might reasonably be expected to result from it:
(a) an alteration, disruption or destruction of fish habitat in contravention of subsection 59(1); and
(b) a deposit of a deleterious substance in contravention of subsection 60(2).
Liability
(2) The following persons are liable under subsection (1):
(a) any person who, at the time of the occurrence or the danger of it, owned or had the charge, management or control of
(i) the work or undertaking that resulted in the occurrence or the danger of the occurrence, or
(ii) the deleterious substance; and
(b) any other person who caused or contributed to the occurrence or the danger of the occurrence.
Extent of liability
(3) The persons described in paragraph (2)(a) are jointly and severally, or solidarily, liable for the costs referred to in subsection (1), and the persons described in paragraph (2)(b) are liable for those costs only to the extent of their respective degrees of liability in tort or extracontractual civil liability.
Recovery of costs
(4) All of the costs referred to in subsection (1) are recoverable by Her Majesty in right of Canada or a province with costs in proceedings brought or taken for them in the name of Her Majesty in that right in any court of competent jurisdiction.
Liability to other persons
(5) Any persons described in subsection (2) who alter, disrupt or destroy fish habitat in contravention of subsection 59(1), or who deposit or permit the deposit of a deleterious substance in contravention of subsection 60(2), are liable for all loss of income incurred by any person as a result of the alteration, disruption or destruction or deposit, or as a result of a prohibition against fishing resulting from it, and all such loss is recoverable with costs in proceedings brought or taken for the loss in any court of competent jurisdiction.
Extent of liability
(6) The persons described in paragraph (2)(a) are jointly and severally, or solidarily, liable for the loss of income referred to in subsection (5), and the persons described in paragraph (2)(b) are liable for that loss only to the extent of their respective degrees of liability in tort or extracontractual civil liability.
Absolute liability
(7) The liability of any person described in paragraph (2)(a) is absolute and does not depend on proof that they caused or contributed to the occurrence, but such a person is not liable for any costs under subsection (1) or loss of income under subsection (5) if they establish that the occurrence giving rise to the liability was wholly caused by
(a) an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
(b) an act or omission with intent to cause damage by any other person, other than a person for whose wrongful act or omission they are by law responsible.
Recourse against another person
(8) Nothing in this section limits or restricts any right of recourse that a person who is liable under this section may have against any other person.
Limitation period
(9) No proceedings may be commenced under subsection (1) or (5) later than five years after the day on which the occurrence to which the proceedings relate could reasonably be expected to have become known to Her Majesty in right of Canada or a province or to the person who has incurred loss of income, as the case may be.
Exception
(10) Subsections (1) and (5) do not apply in respect of any deposit of a deleterious substance that constitutes a discharge — within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001 — caused by or otherwise attributable to a vessel.
Civil remedies
(11) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is authorized under this Part, is an offence under this Part or gives rise to civil liability under this Part.
Offences and Punishment
Contravention of subsection 59(1) or 60(1) or (2)
65. Every person who contravenes subsection 59(1) or 60(1) or (2), or who fails to comply with the whole or any part of a requirement of an inspector or a fishery officer under subsection 62(5),
(a) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding $300,000, and
(ii) for any subsequent offence, to a fine not exceeding $300,000 or to imprisonment for a term not exceeding six months, or to both; or
(b) is guilty of an indictable offence and liable
(i) for a first offence, to a fine not exceeding $1,000,000, and
(ii) for any subsequent offence, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding three years, or to both.
Contravention of other provisions
66. (1) Every person commits an offence who contravenes any provision of this Part or of the regulations made under this Part, or
(a) fails to comply with a request of the Minister made under section 57;
(b) in carrying on a work or undertaking, fails to comply with a condition established by the Minister under paragraph 59(2)(a);
(c) fails to provide the Minister with any information requested under subsection 61(1) within a reasonable time after the request is made;
(d) fails to provide any information in accordance with the regulations in the prescribed circumstances and the prescribed manner referred to in subsection 61(1);
(e) carries on any work or undertaking described in subsection 61(1)
(i) otherwise than in accordance with any material or information relating to the work or undertaking that the person provides the Minister with under that subsection, or
(ii) in contravention of an order of the Minister made under subsection 61(3);
(f) fails to notify an inspector, a fishery officer or a prescribed authority without delay under subsection 62(1) or (2);
(g) fails to take the measures required under subsection 62(3); or
(h) fails to provide an inspector, a fishery officer or a prescribed authority with a written report under subsection 62(4).
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding $200,000, and, for any subsequent offence, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding six months, or to both.
Matters of proof
67. For the purpose of any proceeding in respect of an offence under section 65 or 66,
(a) a harmful alteration or disruption or a destruction of fish habitat takes place whether or not any act or omission resulting in the alteration, disruption or destruction is intentional; and
(b) a deposit takes place whether or not any act or omission resulting in the deposit is intentional.
Report to Parliament
Annual report
68. (1) The Minister must, as soon as possible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration and enforcement of the provisions of this Part and the regulations made under this Part in that fiscal year.
Statistical summary
(2) The report must include a statistical summary of convictions under sections 65 and 66 for that year.
PART 3
AQUATIC INVASIVE SPECIES
Prohibition — export, import, transport
69. (1) No person shall export, import or transport any member of a prescribed aquatic invasive species.
Prohibition — release
(2) No person shall release into waters frequented by fish or permit to be released into waters frequented by fish any member of a prescribed aquatic invasive species.
Exception
(3) No person contravenes subsection (1) or (2) if the action in question is done in conformity with the regulations.
Destruction of members of aquatic invasive species
70. The Minister may, subject to the regulations, destroy or authorize any person to destroy, in accordance with any conditions imposed by the Minister, any member of
(a) a prescribed aquatic invasive species; or
(b) any other species that the Minister considers to be an aquatic invasive species as defined in the regulations.
Regulations
71. The Governor in Council may make regulations for the conservation or protection of fish or fish habitat, including
(a) regulations defining “aquatic invasive species” for the purposes of this Act;
(b) regulations prescribing aquatic invasive species for the purposes of section 69 and paragraph 70(a); and
(c) regulations for controlling aquatic invasive species, which in turn include regulations
(i) preventing the spread of such species,
(ii) respecting the export of members of such species, their import and their transport,
(iii) respecting the release into waters frequented by fish of members of such species,
(iv) respecting the destruction of members of such species under section 70,
(v) respecting the handling of members of such species, or
(vi) respecting any conditions that the Minister may impose on a person authorized to destroy a member of such a species under section 70.
Offences and punishment
72. Every person who contravenes any provision of this Part or of the regulations made under this Part, or fails to comply with a condition imposed on them by the Minister under section 70, is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding $200,000, and, for any subsequent offence, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding six months, or to both.
PART 4
ADMINISTRATION AND ENFORCEMENT
Fishery Officers, Fishery Guardians, Inspectors, Analysts and Certification Officers
Designation of fishery officers, fishery guardians and inspectors
73. (1) The Minister may designate any individuals or class of individuals as fishery officers, fishery guardians or inspectors for the purposes of this Act or the regulations, and may restrict in any manner that the Minister considers appropriate the powers that a fishery officer, fishery guardian or inspector may exercise under this or any other Act of Parliament.
Certificate to be shown
(2) On entering any place or vehicle under this Act, a fishery officer, fishery guardian or inspector must, on request, show the person in possession or control of the place or vehicle a certificate of designation, in the form approved by the Minister, setting out any restrictions on the powers that the officer, guardian or inspector may exercise under this or any other Act of Parliament.
Evidence of designation
(3) Any document appearing to be a certificate referred to in subsection (2) is, in the absence of evidence to the contrary, presumed to be authentic and is evidence in all courts and in all proceedings of the facts stated in it.
Nisga’a laws
74. The powers and protections that a fishery officer or fishery guardian has under this or any other Act of Parliament, including the powers and protections of a peace officer under the Criminal Code, apply to a fishery officer or fishery guardian enforcing Nisga’a laws made under the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act.
Application
75. Every power that may be exercised in Canada by a fishery officer, fishery guardian or inspector under this Act, as well as by a person accompanying the officer, guardian or inspector, may be exercised anywhere this Act applies.
Designation of analysts
76. (1) The Minister may designate any individuals or class of individuals as analysts.
Certificate of analyst as evidence
(2) Subject to subsections (3) and (4), a certificate purporting to be signed by an analyst stating that the analyst has analysed or tested a substance or product, and stating the result of the analysis or test, is, in the absence of evidence to the contrary, presumed to be authentic and is evidence of the facts stated in it in any prosecution for an offence referred to in section 65, 66 or 72.
Attendance of analyst
(3) The party against whom an analyst’s certificate is produced may, with the court’s permission, require the analyst’s attendance for cross-examination.
Notice
(4) No certificate may be admitted in evidence under subsection (2) unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
Designation of certification officers
77. (1) The Minister may designate any individuals or class of individuals as certification officers.
Certification officer’s certificate as evidence
(2) Subject to subsections (3) and (4), a certificate purporting to be signed by a certification officer verifying the accuracy of an instrument used by a fishery officer or fishery guardian for conducting any tests or analyses or taking any measurements is, in the absence of evidence to the contrary, presumed to be authentic and is evidence of the statements contained in it in any prosecution for an offence or proceeding for a violation under this Act.
Attendance of certification officer
(3) The party against whom a certification officer’s certificate is produced may, with the court’s permission, require the certification officer’s attendance for cross-examination.
Notice
(4) No certificate may be admitted in evidence under subsection (2) unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
Inspection
Powers — fishery officers and fishery guardians
78. (1) For any purpose relating to the administration or enforcement of this Act or the regulations, a fishery officer or fishery guardian and any person accompanying the officer or guardian may, at any reasonable time but subject to section 79, enter and inspect any place, including any vehicle, in which the officer or guardian believes on reasonable grounds that
(a) there is any fish, aquatic plant or other thing in respect of which this Act or the regulations apply, including any member of an aquatic invasive species;
(b) any activity in respect of which this Act or the regulations apply has been carried on, is being carried on or is likely to be carried on; or
(c) any work or undertaking in respect of which this Act or the regulations apply has been carried on, is being carried on or is likely to be carried on.
Powers — inspectors
(2) For any purpose relating to the administration or enforcement of this Act or the regulations, an inspector and any person accompanying the inspector may, at any reasonable time but subject to section 79,
(a) enter any place to inspect anything that the inspector believes on reasonable grounds to be an obstruction, or to be any other thing that is detrimental to fish habitat;
(b) enter any place to inspect any fishway that was constructed under subsection 57(2), and inspect any fish stop, diverter, fish guard, screen, covering, netting or other device that was installed under subsection 57(2) or section 58;
(c) enter and inspect any place, including any vehicle, in which the inspector believes on reasonable grounds that there has been carried on, is being carried on or is likely to be carried on any work or undertaking resulting or likely to result in
(i) the alteration, disruption or destruction of fish habitat, or
(ii) the deposit of a deleterious substance referred to in subsection 60(2); and
(d) enter and inspect any place, including any vehicle, in which the inspector believes on reasonable grounds that there is a member of an aquatic invasive species.
Powers
(3) In carrying out the inspection, the fishery officer, fishery guardian or inspector, and any person accompanying the officer, guardian or inspector, may do any of the following for any purpose relating to the administration or enforcement of this Act or the regulations, if they have reasonable grounds for doing so:
(a) open anything found in the place;
(b) examine any fish or aquatic plant found in the place and take samples of it;
(c) examine any other substance, product or thing found in the place and take samples of it;
(d) conduct any tests or analyses or take any measurements;
(e) examine any records, books or other documents found in the place, including documents in electronic form, make copies of them or take extracts from them;
(f) use or cause to be used any copying equipment at the place to make copies of those records, books or other documents and remove the copies for examination;
(g) take photographs and make video recordings and sketches;
(h) use or cause to be used any computer system or data processing system at the place to examine any data contained in or available to the system; and
(i) reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output and remove the printout or other output for examination or copying.
Other places
(4) A fishery officer, fishery guardian or inspector, and any person accompanying the officer, guardian or inspector, may, at any reasonable time but subject to section 79, enter and inspect any place, including any vehicle, in which the officer, guardian or inspector believes on reasonable grounds that there are any records, books or other documents, including documents in electronic form, concerning anything referred to in paragraphs (1)(a) to (c), in the case of a fishery officer or fishery guardian, or paragraphs (2)(a) to (d), in the case of an inspector, and subsection (3) applies to the inspection.
Stopping and detaining vehicle
(5) For the purposes of carrying out an inspection, a fishery officer, fishery guardian or inspector may require any vehicle to be stopped, may require it to be moved to a place where an inspection can be carried out and may detain it for a reasonable time. The operator of the vehicle must comply with the requirements.
Disposition of samples
(6) A fishery officer, fishery guardian or inspector may dispose of a sample taken under paragraph (3)(b) or (c) in any manner that the inspector, officer or guardian considers appropriate.
Warrant required to enter dwelling-place
79. (1) A fishery officer, fishery guardian or inspector may not enter a dwelling-place under section 78 except with the consent of the occupant or under a warrant issued under subsection (2).
Authority to issue warrant
(2) A justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a fishery officer, fishery guardian or inspector to enter a dwelling-place at any reasonable time, subject to any conditions that the warrant specifies, and authorizing any other person named in the warrant to accompany the officer, guardian or inspector and exercise any power that the warrant specifies, if on ex parte application the justice is satisfied by information on oath that
(a) the dwelling-place is a place described in section 78;
(b) entry to the dwelling-place is necessary for any purpose relating to the administration or enforcement of this Act or the regulations; and
(c) entry to the dwelling-place has been refused or there are reasonable grounds to believe that entry will be refused.
Duty to assist
80. The owner or person who is in possession or control of a place that is inspected under section 78, and every person found in the place, must
(a) give the fishery officer, fishery guardian or inspector, and every person accompanying the officer, guardian or inspector, all reasonable assistance to enable them to carry out the inspection and exercise any power conferred by that section; and
(b) provide them with any information rel- evant to the administration or enforcement of this Act or the regulations that the officer, guardian or inspector reasonably requires.
Search
Warrant
81. (1) A justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing, subject to any conditions that the warrant specifies, a fishery officer or inspector, and any other person named in the warrant, to enter and search any place, including a vehicle, and to seize anything referred to in paragraphs (a) to (c) if on ex parte application the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in the place anything that
(a) was used in the commission of an offence or violation under this Act or is something in relation to which such an offence or violation has been committed,
(b) will provide evidence with respect to the commission of an offence or violation under this Act; or
(c) was obtained by the commission of an offence or violation under this Act.
Search and seizure
(2) The fishery officer or inspector and any other person named in the warrant may
(a) at any reasonable time enter and search a place referred to in the warrant;
(b) seize and detain anything referred to in the warrant and any other thing that
(i) was used in the commission of an offence or violation under this Act or is something in relation to which such an offence or violation has been committed,
(ii) will provide evidence with respect to the commission of an offence or violation under this Act, or
(iii) was obtained by the commission of an offence or violation under this Act; and
(c) exercise the powers described in section 78.
Use of force
(3) In executing the warrant, an inspector and any other person named in it may not use force unless they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
When warrant not necessary
82. (1) A fishery officer or inspector may exercise the powers referred to in subsection 81(2) without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain one.
Exigent circumstances
(2) Exigent circumstances include circumstances in which the delay necessary to obtain a warrant would result in danger to human life or the loss or destruction of evidence.
Entry
83. A fishery officer, fishery guardian or inspector exercising powers or performing functions under this Act, and any person accompanying the officer, guardian or inspector, may enter on and pass through or over private property without being liable for doing so or without the owner of the property having the right to object to that use of the property.
Seizure
Power to seize
84. A fishery officer or fishery guardian may seize
(a) any fish, aquatic plant or other thing, including a vehicle, that the officer or guardian believes on reasonable grounds
(i) was used in the commission of an offence or violation under this Act or is something in relation to which such an offence or violation has been committed,
(ii) will provide evidence with respect to the commission of an offence or violation under this Act, or
(iii) was obtained by the commission of an offence or violation under this Act; or
(b) any fish or aquatic plant that the officer or guardian believes on reasonable grounds has been intermixed with fish or aquatic plants, respectively, referred to in paragraph (a).
Release of seized fish
85. Despite sections 86 to 107, a fishery officer or fishery guardian who seizes any fish may return to the water any of those fish that the officer or guardian believes are alive.
Detention of seized things
86. (1) A fishery officer, fishery guardian or inspector who seizes anything under this Act may detain it or deliver it into the custody of any person the officer, guardian or inspector considers appropriate.
Examination or delivery into custody
(2) The person who is given custody of a thing must, on the request of a fishery officer, fishery guardian or inspector made at any reasonable time, make it available for inspection by, or deliver it into the custody of, the officer, guardian or inspector.
Perishables
87. (1) Despite anything in this Act, a fishery officer, fishery guardian or inspector who has custody of anything seized that is perishable or susceptible to deterioration may dispose of it in any manner the officer, guardian or inspector considers appropriate, subject to the regulations, and any proceeds of its disposition must be paid to the Receiver General.
Proceeds of disposition
(2) If anything has been disposed of under subsection (1), a reference to the thing in sections 89 to 107 includes the proceeds of disposition of that thing, with any modifications that the circumstances require.
Release of seized things on deposit of security
88. (1) Subject to section 85, the court, in the case of proceedings for an offence under this Act, or the Tribunal, in the case of proceedings in relation to a violation, may order that anything that is seized and that has not been forfeited be released to the holder or, if there is no holder, to the owner or the person from whom it was seized, if security is given to Her Majesty in right of Canada in a form and amount that is satisfactory to the court or the Tribunal, as the case may be.
References
(2) If security has been given under subsection (1), a reference in sections 89 to 107 to anything includes the security given for that thing, a reference in sections 91 to 93 to the forfeiture of the thing includes a reference to realization of the security, and a reference in subsections 89(1) and 98(1) to the holder is to be read as a reference to the person who gave the security for the thing, with any modifications that the circumstances require.
Detention of Seized Things
Seized things released if no proceeding commenced
89. (1) Subject to section 85 and to subsections (2) and (3), anything seized must, within 90 days after the day on which it was seized, be released to the holder or, if there is no holder, to the owner or the person from whom it was seized.
Seized things detained if proceeding commenced
(2) Anything seized may be detained until it is forfeited or until after the proceeding is finally concluded if, before the end of the period referred to in subsection (1), a proceeding is commenced in relation to the thing for an offence or violation under this Act.
Order to extend detention of things seized
(3) If, on application within the period referred to in subsection (1) by the Minister, in the case of a proceeding with respect to an offence, or by a case presentation officer, in the case of a proceeding with respect to a violation, the court or Tribunal, as the case may be, is satisfied that detention of the thing for a longer period is justified in the circumstances, the court or Tribunal may make an order permitting the thing to be detained for any further period that it specifies.
Management of seized things
90. (1) Subject to any other Act of Parliament, the Minister may manage anything that has been seized in any manner that the Minister considers appropriate, including by advancing money at a commercial rate of interest to
(a) maintain its ongoing operation;
(b) satisfy the terms of any order concerning environmental, industrial, labour or property standards to which it is subject; or
(c) make improvements to it to preserve it and its economic worth.
Vehicles
(2) If the thing that has been seized is a vehicle, then a lien or a prior claim constituting a real right attaches to the vehicle for the amount spent on its management, and the lien or prior claim has priority over all other rights, interests, claims and demands whatever, except in the case of a fishing vessel for masters’ and crew members’ claims that arise under the Canada Shipping Act, 2001 in respect of their employment on the vessel.
Forfeiture and Disposition
Offence — forfeiture
91. (1) If a person is convicted of an offence under this Act, the court must, in addition to any other punishment imposed, order the forfeiture to Her Majesty in right of Canada of any fish that was seized in relation to the offence and that was caught, killed, processed, landed, transported, imported, purchased, sold or possessed in contravention of this Act or the regulations.
Forfeiture of other things
(2) If a person is convicted of an offence under this Act, the court may, in addition to any other punishment imposed, order the forfeiture to Her Majesty in right of Canada of anything that was seized, or the proceeds of disposition or any part of the proceeds of disposition of the thing, if
(a) the thing was used in the commission of the offence or the offence was committed in relation to it; or
(b) the thing was obtained by the commission of the offence.
Forfeiture where no conviction
(3) Even if a person is not convicted of an offence under this Act, the court may nevertheless order the forfeiture to Her Majesty in right of Canada of any fish that was seized in relation to the alleged offence and that was caught, killed, processed, landed, transported, imported, purchased, sold or possessed in contravention of this Act or the regulations.
Violation — forfeiture
92. (1) If the Tribunal declares that a person is liable for a violation, it must order the forfeiture to Her Majesty in right of Canada of any fish that was seized in relation to the violation and that was caught, killed, processed, landed, transported, imported, purchased, sold or possessed in contravention of this Act or the regulations.
Forfeiture of other things
(2) If the Tribunal declares that a person is liable for a major violation, it may order the forfeiture to Her Majesty in right of Canada of anything that was seized, or the proceeds of disposition or any part of the proceeds of disposition of the thing, if
(a) the thing was used in the commission of the violation or the violation was committed in relation to it; or
(b) the thing was obtained by the commission of the violation.
Forfeiture where no liability
(3) Even if the Tribunal declares that a person is not liable for a violation, it may nevertheless order the forfeiture to Her Majesty in right of Canada of any fish that was seized in relation to the alleged violation and that was caught, killed, processed, landed, transported, imported, purchased, sold or possessed in contravention of this Act or the regulations.
If person has absconded
93. (1) If a proceeding for an offence or violation under this Act has been commenced against a person and the person has absconded, the Minister or a case presentation officer may apply to the court or Tribunal, as the case may be, for an order that anything that has been seized under this Act in relation to the offence or violation is forfeited to Her Majesty in right of Canada, and the court or Tribunal must grant the order if it is satisfied that the person has absconded.
Meaning of “abscond”
(2) For the purposes of this section, a person has absconded if, despite reasonable efforts, the Minister or the case presentation officer has found it impossible to contact the person.
Notice of forfeiture
94. If a thing that is forfeited in relation to an offence or violation under this Act is a fishing vessel, the Minister or a case presentation officer, as the case may be, must, within 30 days after the day on which it was forfeited, give notice of the forfeiture to the owner of the fishing vessel and to any person who the Minister or the case presentation officer knows holds, at the time the notice is given, a maritime lien or any similar interest against the fishing vessel.
Forfeiture if ownership not ascertainable
95. If the ownership of anything seized under this Act cannot be ascertained at the time of the seizure, the thing is forfeited to Her Majesty in right of Canada.
Forfeiture on consent
96. (1) If the person from whom any fish was seized under this Act consents to its forfeiture, the fish is forfeited to Her Majesty in right of Canada.
Disposition of forfeited fish
(2) Any fish that is forfeited under subsection (1) may be disposed of at any time after its forfeiture, in any manner that the Minister directs.
Disposition of forfeited things
97. (1) Subject to sections 96 and 99 to 107, anything forfeited under this Act must be disposed of, in any manner that the Minister directs, after the proceedings in relation to the forfeiture are finally concluded.
Exception
(2) Despite subsection (1), any fishing gear or equipment whose ownership cannot be ascertained at the time of its seizure may be disposed of in any manner that the Minister directs.
Release of things not forfeited
98. (1) Subject to subsection (2), anything that is seized under this Act and that is not forfeited must, after the proceeding is finally concluded, be released to the holder, or if there is no holder, to the owner or the person from whom it was seized.
Exception
(2) Anything that is seized in relation to an offence or violation
(a) may be detained until any fine, monetary penalty or amount that constitutes a debt due to Her Majesty in right of Canada under subsection 129(1) or 200(1) in relation to the offence or violation is paid; or
(b) may be sold or otherwise disposed of in satisfaction of the fine, monetary penalty or debt referred to in paragraph (a), and any proceeds of its disposition may be applied in payment of the fine, penalty or debt.
Relief from Forfeiture
Application by person claiming interest
99. (1) If anything is forfeited under this Act other than fish, an aquatic plant or fishing gear or equipment that has been disposed of under subsection 97(2), then any person who claims an interest or right in the thing may, within 60 days after the day on which the thing was forfeited, apply for an order referred to in section 102 to the superior court of the province in which the seizure took place or to a court that has jurisdiction with respect to the seizure under section 22 of the Oceans Act.
Extension
(2) On the application of any person entitled to apply for an order under subsection (1), the court may extend the period within which the person may apply for the order by any amount of time that the court considers appropriate.
Date of hearing
(3) The court must fix a day for the hearing of the application under subsection (1) that is at least 30 days after the day on which the application was filed.
Notice
(4) The applicant must serve a notice of the application and of the hearing on the Attorney General of Canada at least 15 days before the day that is fixed for the hearing.
Release if security given
100. The Minister may, at any time after an application has been made under subsection 99(1), order the thing forfeited to be released to the applicant if security is given to Her Majesty in right of Canada in a form and amount that is satisfactory to the Minister.
Disposition of thing
101. (1) Even if an application has been made under subsection 99(1) in respect of a forfeited thing, the Minister may request the authorization of the court to dispose of the thing and, with that authorization, may order that the thing be disposed of.
Notice of application for authorization
(2) The Minister must give notice of the request and of the hearing of it at least 30 days before the day that is fixed for the hearing to every person who the Minister knows has an interest or right in the thing and, if the thing is a fishing vessel, to every person referred to in section 94.
Authorization
(3) The court may grant the authorization if, in its opinion, the thing is deteriorating.
Proceeds of disposition
(4) The Minister must hold the proceeds of disposition of the thing until any application under subsection 99(1) in respect of the thing has been finally disposed of.
Order by court
102. On receipt of an application under subsection 99(1), the court must make an order declaring that the applicant’s interest or right is not affected by the forfeiture and declaring the nature and value of that interest or right if the court is satisfied that
(a) there was no complicity or collusion on the part of the applicant in relation to the offence or violation that resulted in the forfeiture; and
(b) the applicant
(i) exercised all reasonable care in respect of the person permitted to obtain possession of the thing that is the subject of the application in order to be satisfied that the thing was not likely to be used in contravention of this Act or the regulations, or
(ii) in the case where the applicant is a mortgagee or hypothecary creditor, a lienholder or any other secured creditor, exercised all reasonable care in respect of the debtor.
Ranking of applicants
103. If there is more than one person who claims an interest or right in a thing, a court hearing an application made under subsection 99(1) with respect to the thing may, on application by the Attorney General of Canada or any of those persons, determine the ranking of those persons’ interests or rights.
Appeal
104. The applicant or the Attorney General of Canada may appeal from an order made under section 102 to the court of appeal of the province in which the order was made, and the ordinary procedure governing appeals to that court from orders or judgments of a judge applies to the appeal.
Application to Minister
105. (1) Subject to subsections (2) and (3), the Minister must, on application made by any person who has obtained an order under section 102 that is a final order,
(a) direct that the thing to which the interest or right of the applicant relates be returned to the applicant; or
(b) direct that the applicant be paid an amount equal to the value of the applicant’s interest or right, as declared in the order.
Exception
(2) A thing directed to be returned under paragraph (1)(a) or an amount directed to be paid under paragraph (1)(b) may be detained until any fine, monetary penalty or amount that constitutes a debt due to Her Majesty in right of Canada under subsection 129(1) or 200(1) in relation to the offence or violation is paid.
Vehicles
(3) If the thing directed to be returned under paragraph (1)(a) is a vehicle, then a lien or a prior claim constituting a real right attaches to the vehicle for the fine, monetary penalty or amount referred to in subsection (2), and the lien or prior claim has priority over all other rights, interests, claims and demands whatever, except in the case of a fishing vessel for masters’ and crew members’ claims that arise under the Canada Shipping Act, 2001 in respect of their employment on the vessel.
Discharge of encumbrances
106. A court may, on ex parte application of the Minister, make an order directing the registrar to register a discharge of any interest or right recorded against a thing disposed of under this Act the title to which is required to be registered, if the court is satisfied that the person in whose favour the interest or right was registered was given notice in accordance with subsection 101(2).
Her Majesty not liable for shortfall
107. Her Majesty in right of Canada is not liable for any difference between the proceeds of disposition of anything disposed of under this Act and the thing’s fair market value.
Other Enforcement Measures
Arrest
108. Any fishery officer, fishery guardian or peace officer may arrest without warrant a person who the officer or guardian finds committing an offence under this Act, or who the officer or guardian believes, on reasonable grounds, has committed or is about to commit an offence under this Act.
Prohibitions, Offences and Punishment
Obstruction and False Information
Obstruction
109. No person shall interfere with, resist or obstruct any person engaged in the administration or enforcement of this Act or the regulations, or any person accompanying such a person.
False statements
110. (1) No person shall make a false or misleading statement, whether orally or in writing, to any person engaged in the administration or enforcement of this Act or the regulations, or to any person accompanying such a person.
False statements in applications
(2) No person shall make a false or misleading statement, whether orally or in writing, in an application for a licence, a lease or any other authorization under this Act.
Documents containing false information
(3) No person shall make a false or misleading statement in any record, book or other document, including a document in electronic form, that is required to be made available for examination or copying by any person engaged in the administration or enforcement of this Act or the regulations, or by any person accompanying such a person.
Producing documents
(4) No person shall produce to any person engaged in the administration or enforcement of this Act or the regulations, or to any person accompanying such a person, for examination or copying, any record, book or other document, including a document in electronic form, knowing that it contains false or misleading information.
False statements in written representations
(5) No person shall make a false or misleading statement in a statement referred to in section 188, 189 or 192 or in any other statement that is sent to the Tribunal and that sets out written representations in connection with a violation or contains documentary evidence in support of those representations.
Exemption
Administering or enforcing Act
111. No person commits an offence under this Act by reason of exercising powers or performing functions related to the administration or enforcement of this Act or the regulations, or by reason of accompanying a person exercising such powers or performing such functions.
General Provisions
Punishment not otherwise provided for
112. (1) Subject to this Act, every person who contravenes this Act or the regulations
(a) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding $100,000, and
(ii) for any subsequent offence, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding one year, or to both; or
(b) is guilty of an indictable offence and liable
(i) for a first offence, to a fine not exceeding $500,000, and
(ii) for any subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding two years, or to both.
Punishment — other
(2) Every person who contravenes subsection 33(5), section 39 or 40 or an alternative measures agreement referred to in section 131
(a) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $100,000; or
(b) is guilty of an indictable offence and liable to a fine not exceeding $500,000.
Subsection 52(1) and paragraph 57(4)(a)
113. No person may be convicted of an offence under both subsection 52(1) and paragraph 57(4)(a) in respect of the same activity.
Offences deemed committed in Canada
114. (1) An act or omission that is an offence or violation under this Act — or that is committed by or against a person who is engaged in the administration or enforcement of this Act or the regulations, or a person accompanying them, and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed anywhere outside Canada where this Act applies.
Exercising powers of arrest, entry, etc.
(2) Every power — including arrest, entry, search and seizure — that may be exercised in Canada in respect of an offence or violation under this Act or an offence under the Criminal Code may, in respect of an offence or violation referred to in subsection (1), be exercised anywhere this Act applies.
Jurisdiction of justice or judge
(3) A justice, as defined in section 2 of the Criminal Code, or a judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure in connection with an offence or violation referred to in subsection (1) as if it had been committed in that territorial division.
Jurisdiction of courts
(4) A proceeding in respect of an offence or violation referred to in subsection (1) may be commenced in any territorial division in Canada whether or not the accused is in Canada, and the accused may be tried and punished for that offence or violation as if it had been committed in that territorial division.
Revocation, etc.
115. If a person is convicted of an offence under this Act in respect of any matter relating to fishing under the authority of a licence, then in addition to any other punishment imposed the court may, by order,
(a) revoke the licence or suspend it for any period that the court considers appropriate; and
(b) prohibit the person from applying for any licence during any period that the court considers appropriate.
Orders of court
116. (1) If a person is convicted of an offence under this Act, then in addition to any other punishment imposed the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order doing one or more of the following:
(a) directing the person to pay the reasonable costs incurred in the seizure, detention, maintenance or disposition of any fish, aquatic plant or other thing seized in relation to the offence;
(b) prohibiting the person from doing any act or engaging in any activity that might, in the court’s opinion, result in the continuation or repetition of the offence;
(c) directing the person to take any action that the court considers appropriate to prevent or remedy any harm to any fish or fishery or to fish habitat that resulted or might result from the commission of the offence;
(d) directing the person to publish, in any manner that the court considers appropriate, the facts relating to the commission of the offence;
(e) directing the person to pay Her Majesty in right of Canada or a province an amount of money as compensation, in whole or in part, for the cost of any preventive or remedial action taken by or caused to be taken on behalf of the Minister or the competent minister of that province as a result of the commission of the offence;
(f) directing the person to perform community service in accordance with any reasonable conditions that are specified in the order;
(g) directing the person to pay Her Majesty in right of Canada, any person or any entity an amount of money that the court considers appropriate for the purpose of promoting the proper management or control of fisheries or the conservation or protection of fish or fish habitat;
(h) directing the person to pay Her Majesty in right of a province an amount of money that the court considers appropriate for the purpose of promoting the proper management or control of fisheries or the conservation or protection of fish or fish habitat;
(i) directing the person to post a bond or pay into court an amount of money that the court considers appropriate for ensuring compliance with any prohibition or direction referred to in this subsection;
(j) directing the person to submit to the Minister, within three years after the day on which the order is made, any information requested by the Minister respecting the person’s activities that relates to a matter specified in the order; and
(k) directing the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing them from repeating the offence or committing other offences under this Act.
Publication
(2) If a person does not comply with an order made under paragraph (1)(d) directing them to publish the facts relating to the commission of an offence, the Minister may publish those facts and recover the costs of publication from the person.
Additional fine
117. If a person is convicted of an offence under this Act and the court is satisfied that, as a result of committing the offence, financial benefits accrued to the person, the court may, despite the maximum amount of any fine that may otherwise be imposed under this Act, make an order directing the person to pay an additional fine in an amount equal to the amount of those benefits as determined by the court.
Suspended sentence
118. (1) If a person is convicted of an offence under this Act and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order directing the person to comply with any prohibition or direction referred to in subsection 116(1).
Imposition of sentence
(2) If a person whose sentence has been suspended does not comply with an order made under subsection (1) or is convicted of another offence under this Act within three years after the day on which the order is made, the court may, on the application of the Attorney General of Canada, impose any sentence that could have been imposed if the passing of sentence had not been suspended.
Variation of orders
119. (1) A court that has made an order under subsection 116(1) or 118(1) may, on application by the Attorney General of Canada or the person to whom the order applies, require the person to appear before it and, after hearing the person and the Attorney General of Canada, vary the order in one or more of the following ways that the court considers appropriate owing to a change in the person’s circumstances since the order was made:
(a) by changing any prohibition or direction set out in the order;
(b) by relieving the person, either absolutely or partially and for any period that the court considers appropriate, of compliance with any prohibition or direction set out in the order; and
(c) by increasing or decreasing the period during which the order is to remain in force.
Limitation
(2) If an application has been heard by a court under subsection (1), no other application may be made in respect of the same order except with leave of the court.
Offence and punishment
120. Every person convicted of an offence under this Act who subsequently contravenes an order made under subsection 116(1) or 118(1)
(a) is guilty of an offence punishable on summary conviction and liable to a punishment not exceeding the maximum punishment to which a person is liable on summary conviction for the original offence; or
(b) is guilty of an indictable offence and liable to a punishment not exceeding the maximum punishment to which a person is liable on conviction on indictment for the original offence.
Continuing offences
121. If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Offences by corporate officers, etc.
122. If a corporation commits an offence under this Act, any officer, director or 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 punishment provided for it, whether or not the corporation has been prosecuted.
Offences by employees, agents or mandataries
123. In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or an agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the accused’s knowledge or consent and that the accused exercised all due diligence to prevent its commission.
Offences committed by person authorized to fish
124. A holder may be found guilty not only of an offence that the holder actually commits but also of an offence that is committed by a person who is authorized to fish under the authority of the holder’s licence, whether or not the person who actually committed the offence is identified or is prosecuted in accordance with this Act.
Due diligence defence
125. A person may not be convicted of an offence under this Act if the person establishes that they
(a) exercised all due diligence to prevent its commission; or
(b) reasonably and honestly believed in the existence of facts that, if true, would render their conduct innocent.
Burden of proving licence
126. In any prosecution for an offence under this Act, if a question arises as to whether a person was issued a licence, the burden is on the person to establish that the licence was issued.
Limitation period
127. A proceeding by way of summary conviction in respect of an offence under this Act may not be commenced later than five years after the day on which the offence was committed.
Appeal in proceedings by indictment
128. (1) For the purpose of Part XXI of the Criminal Code, any order, or decision not to make an order, under section 91 or any of sections 115 to 118, as well as any sentence passed by the court under this Act, is a sentence within the meaning of section 673 of the Criminal Code.
Appeal in summary conviction proceedings
(2) For the purpose of Part XXVII of the Criminal Code, any order, or decision not to make an order, under section 91 or any of sections 115 to 118, as well as any sentence passed by the court under this Act, is a sentence within the meaning of section 785 of the Criminal Code.
Execution
Debt due to Her Majesty
129. (1) The following amounts constitute debts due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction:
(a) an amount that a person is directed to pay under an order made under subsection 116(1), from the time of the order;
(b) reasonable costs incurred in the seizure, detention, maintenance or disposition of any fish, aquatic plant or other thing seized under this Act, including money advanced under section 90, from the time that the costs were incurred; and
(c) costs incurred by the Minister under subsection 116(2) in publishing the facts relating to the commission of an offence, from the time that the Minister incurs those costs.
Extinguishment of debts
(2) An unpaid debt under this section is extinguished five years after the day on which it becomes due.
Alternative Measures Agreements
Definitions
130. The definitions in this section apply in sections 131 to 143.
“alternative measures”
« mesures de rechange »
“alternative measures” means measures in respect of the protection of fisheries or fish habitat or the prevention of pollution, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act.
“Attorney General”
« procureur général »
“Attorney General” means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which the proceedings are taken, and includes the lawful deputy of any of them.
When measures may be used
131. (1) Alternative measures may be used only if doing so is not inconsistent with the purposes of this Act and the following conditions are met:
(a) the measures are part of a program of alternative measures authorized by the Attorney General after consulting with the Minister;
(b) the alleged offence is an offence under this Act, except an offence under section 109 or 110;
(c) an information has been laid in respect of the offence;
(d) the Attorney General, after consulting with the Minister, is satisfied that the measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors:
(i) the importance of the protection of fisheries or fish habitat or the prevention of pollution,
(ii) the alleged offender’s history of compliance with this Act,
(iii) the question of whether the offence is a repeated occurrence,
(iv) any allegation that information is being or was concealed or other attempts to subvert the purposes and requirements of this Act are being or have been made, and
(v) the question of whether any remedial or preventive action has been taken by or on behalf of the alleged offender in relation to the offence;
(e) the alleged offender has been advised of the right to be represented by counsel;
(f) the alleged offender accepts responsibility for the act or omission that forms the basis of the offence;
(g) the alleged offender applies, in accord- ance with regulations made under section 143, to participate in the measures;
(h) the alleged offender and the Attorney General have entered into an alternative measures agreement within 180 days after the day on which the Attorney General provided the alleged offender with initial disclosure of the Crown’s evidence;
(i) the Attorney General considers that there is sufficient evidence to proceed with the prosecution of the offence; and
(j) the prosecution of the offence is not barred at law.
Restriction on use
(2) Alternative measures may not be used if the alleged offender
(a) denies participation or involvement in the commission of the alleged offence; or
(b) expresses the wish to have any charge against them dealt with by the court.
Admissions not admissible in evidence
(3) No admission, confession or statement accepting responsibility for a given act or omission made by an alleged offender as a condition of being dealt with by alternative measures is admissible in evidence against them in any civil or criminal proceedings.
Dismissal of charge
(4) If alternative measures have been used, the court must dismiss the charge laid against the alleged offender in respect of that offence if the court is satisfied on a balance of probabilities that the alleged offender has complied with the alternative measures agreement.
No bar to proceedings
(5) The use of alternative measures is not a bar to any proceedings against the alleged offender under this Act.
Laying of information, etc.
(6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accord- ance with the law.
Sentencing considerations
132. If an information in respect of an offence of contravening an alternative measures agreement has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence must take into account any sentence that has previously been imposed for the other offence.
Nature of measures contained in agreement
133. (1) An alternative measures agreement may contain any terms and conditions, including
(a) terms and conditions having any or all of the effects set out in subsection 116(1) or having any of the prescribed effects that the Attorney General, after consulting with the Minister, considers appropriate; and
(b) terms and conditions relating to the costs of laboratory and field tests, travel and living expenses, costs of scientific analyses and other reasonable costs associated with supervising and verifying compliance with the agreement.
Supervisory bodies
(2) Any governmental or non-governmental body may supervise compliance with an alternative measures agreement.
Duration of agreement
134. An alternative measures agreement comes into force on the day on which it is signed or on any later day that the agreement specifies and continues in force for the period, not exceeding five years, that the agreement specifies.
Filing in court for the purpose of public access
135. (1) Subject to subsection (5), the Attorney General must consult with the Minister before entering into an alternative measures agreement and must cause the agreement to be filed, as part of the court record of the proceedings to which the public has access, with the court in which the information was laid within 30 days after the day on which the agreement was entered into.
Reports
(2) A report relating to the administration of or compliance with an alternative measures agreement must, immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed, be filed with the court in which the agreement was filed in accordance with subsection (1).
Confidential information or material injury
(3) Subject to subsection (4), the following information that is to be part of an alternative measures agreement or a report referred to in subsection (2) must be set out in a schedule to the agreement or to the report:
(a) trade secrets of any person;
(b) financial, commercial, scientific or technical information that is confidential information and that is treated consistently in a confidential manner by any person;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice any person’s competitive position; or
(d) information the disclosure of which could reasonably be expected to interfere with any person’s contractual or other negotiations.
Agreement on information to be in schedule
(4) The parties to an alternative measures agreement must agree on which information is information referred to in paragraphs (3)(a) to (d).
Schedule confidential
(5) The schedule is confidential and must not be filed with the court.
Prohibition of disclosure
(6) The Minister must not disclose any information set out in a schedule except under section 141 or under the Access to Information Act.
Stay and recommencement of proceedings
136. Despite section 579 of the Criminal Code,
(a) the Attorney General must, on filing the alternative measures agreement, stay the proceedings or apply to the court for an adjournment of the proceedings in respect of the offence alleged to have been committed for a period of not more than one year after the day on which the agreement expires; and
(b) proceedings stayed in accordance with paragraph (a) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but if no such notice is given within one year after the day on which the agreement expires, the proceedings are deemed never to have been commenced.
Application to vary agreement
137. (1) The Attorney General may, on application by the alleged offender and after consulting with the Minister, vary an alternative measures agreement in one or both of the following ways, if the Attorney General considers doing so appropriate owing to a material change in the circumstances since the agreement was entered into or last varied:
(a) by making any changes to the agreement or to its terms and conditions; and
(b) by decreasing the period during which the agreement is to remain in force or relieving the alleged offender, either absolutely or partially or for any period that the Attorney General considers desirable, of compliance with any term or condition that the agreement specifies.
Filing of varied agreement
(2) Subject to subsection 135(5), an agreement that has been varied under subsection (1) must be filed with the court in which the original agreement was filed under subsection 135(1).
Records
138. Sections 139 to 141 apply only to alleged offenders who have entered into an alternative measures agreement, regardless of the degree of their compliance with its terms and conditions.
Records of police forces and investigative bodies
139. (1) A record that relates to an offence under this Act that is alleged to have been committed, including the original or a copy of any fingerprints or photographs of the alleged offender, may be kept by any police force or body responsible for, or participating in, the investigation of the offence.
Disclosure by fishery officer, fishery guardian or inspector
(2) A fishery officer, fishery guardian or inspector may disclose to any person any information in a record kept under this section that it is necessary to disclose in the conduct of the investigation of an offence under this Act.
Disclosure to insurance company
(3) A fishery officer, fishery guardian or inspector may disclose to an insurance company any information in a record kept under this section that it is necessary to disclose for the purpose of the insurance company’s investigation of a claim arising out of an offence under this Act that is committed or alleged to have been committed by the alleged offender to whom the record relates.
Government records
140. (1) The Minister, fishery officers, fishery guardians and inspectors and any department or agency of a government in Canada with which the Minister has entered into an agreement under section 142 may keep records and use information obtained as a result of the use of alternative measures
(a) for the purposes of an inspection under this Act or an investigation of any offence under this Act;
(b) in any proceedings under this Act;
(c) for the purpose of the administration of alternative measures programs; or
(d) otherwise for the purposes of the administration or enforcement of this Act.
Supervision records
(2) Any person who is engaged in supervising compliance with an alternative measures agreement may keep records relating to the supervision and use information that they obtain as a result of the supervision.
Disclosure of records
141. (1) Any record or information referred to in section 139 or 140 may be
(a) made available to any judge or court for any purpose that relates to proceedings relating to offences under this Act that are committed or alleged to have been committed by the alleged offender to whom the record or information relates;
(b) made available to any prosecutor, fishery officer, fishery guardian or inspector
(i) for the purpose of investigating an offence under this Act that the alleged offender is suspected on reasonable grounds of having committed, or in respect of which the alleged offender has been arrested or charged, or
(ii) for any purpose that relates to the administration of the case to which the record relates;
(c) made available to any employee of a department or agency of a government in Canada, or any agent of such a department or agency, that is
(i) engaged in the administration of alternative measures in respect of the alleged offender, or
(ii) preparing a report in respect of the alleged offender under this Act; or
(d) made available to any other person who is considered, or is within a class of persons that is considered, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if that person gives a written undertaking not to subsequently disclose the information except in accordance with subsection (2) and if the judge is satisfied that the disclosure is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice.
Subsequent disclosure
(2) If a record is made available to a person under subparagraph (1)(d)(i), the person may subsequently disclose information contained in the record, but must not disclose it in any form that could reasonably be expected to identify the alleged offender to whom it relates or any other person specified by the judge.
Information and copies
(3) Any person to whom a record is authorized to be made available under this section may be given any information that is contained in the record and may be given a copy of any part of the record.
Evidence
(4) Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.
Exception for public access to court record
(5) For greater certainty, this section does not apply to an alternative measures agreement, a varied alternative measures agreement or a report that is filed with the court in accordance with section 135.
Agreements respecting exchange of information
142. The Minister may enter into an agreement with a department or agency of a government in Canada respecting the exchange of information for the purpose of administering alternative measures or preparing a report in respect of an alleged offender’s compliance with an alternative measures agreement.
Regulations
143. The Minister may make regulations respecting the alternative measures that may be used for the purposes of this Act, including regulations
(a) excluding specified offences under this Act from the application of those measures;
(b) prescribing the form and manner in which and the period within which an application to participate in the measures is to be made, and the information that is to be contained in or that is to accompany the application;
(c) respecting the manner of preparing and filing reports relating to the administration of and compliance with alternative measures agreements;
(d) respecting the terms and conditions that may be provided for in an alternative measures agreement and their effects; and
(e) respecting the types of reasonable costs and the manner of paying the costs associated with supervising and verifying compliance with an alternative measures agreement.
Ticketable Offences
Procedure
144. (1) In addition to the procedures set out in the Criminal Code for beginning a proceeding, a proceeding in respect of any prescribed offence may be begun by a fishery officer, fishery guardian or inspector
(a) completing a ticket that consists of a summons portion and an information portion;
(b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused’s latest known address; and
(c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as possible after the summons portion has been delivered or mailed.
Content of ticket
(2) The summons and information portions of a ticket must
(a) set out, in the prescribed manner, a description of the offence and the time and place of its alleged commission;
(b) include a statement, signed by the fishery officer, fishery guardian or inspector who completes the ticket, that the officer, guardian or inspector has reasonable grounds to believe that the accused committed the offence;
(c) set out the amount of the fine prescribed for the offence and the manner in which and period within which it is to be paid;
(d) include a statement that if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and
(e) include a statement that, if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court, and at the time, set out in the ticket.
Notice of forfeiture
145. If any fish, aquatic plant or other thing is seized under this Act and proceedings relating to it are begun by way of a ticket under subsection 144(1) or under the Contraventions Act, the fishery officer, fishery guardian or inspector who completes the ticket must give written notice to the accused that, if the accused pays the prescribed fine within the period set out in the ticket, the fish, aquatic plant or other thing, or any proceeds of its disposition, is forfeited to Her Majesty in right of Canada.
Consequences of payment
146. (1) If an accused to whom the summons portion of a ticket is delivered or mailed pays the prescribed fine within the period set out in the ticket,
(a) in the case of a ticket issued under subsection 144(1), the payment constitutes a plea of guilty to the offence described in the ticket, a conviction must be entered against the accused and no further action may be taken against the accused in respect of that offence; and
(b) whether the ticket was issued under subsection 144(1) or under the Contraventions Act, any fish, aquatic plant or other thing seized from the accused under this Act in relation to the offence described in the ticket, or any proceeds of its disposition, is despite sections 89 to 107 forfeited to Her Majesty in right of Canada and may be disposed of as the Minister directs.
Consequences of non-payment
(2) If the accused neither pays the prescribed fine within the period set out in the ticket nor appears in court as set out in the ticket, and is found guilty of the offence, then, whether the ticket was issued under subsection 144(1) or under the Contraventions Act, in addition to any other punishment imposed any fish, aquatic plant or other thing seized from the accused under this Act in relation to the offence described in the ticket, or any proceeds of its disposition, is, despite sections 89 to 107, forfeited to Her Majesty in right of Canada and may be disposed of as the Minister directs.
Other Remedies
Injunction
147. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence or violation under this Act, the court may issue an injunction ordering any person named in the application
(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence or violation under this Act; or
(b) to do any act or thing that it appears to the court may prevent the commission of an offence or violation under this Act.
Notice
(2) No injunction may be issued under subsection (1) unless 48 hours’ notice is given to the party or parties named in the application; however, an injunction may be issued without such notice if the urgency of the situation is such that service of notice would not be in the public interest.
Regulations
Governor in Council
148. The Governor in Council may make regulations for carrying out the purposes of this Part, including regulations
(a) respecting the manner of disposing of things under section 87, including the manner and form of giving notices in relation to the disposition;
(b) respecting the manner in which the proceeds of fines and the proceeds of the disposition of forfeited things are to be distributed;
(c) prescribing offences under this Act to which section 144 applies and respecting the manner in which those offences may be described in tickets; and
(d) prescribing the amount of the fine for each offence prescribed under paragraph (c), which may not exceed $2,000.
PART 5
CANADA FISHERIES TRIBUNAL
Establishment of Tribunal
Canada Fisheries Tribunal
149. (1) A tribunal, to be known as the Canada Fisheries Tribunal, is established.
Head office
(2) The Tribunal’s head office is to be at the place that is fixed by order of the Governor in Council.
Composition
150. The Tribunal consists of a Chairperson and a Vice-chairperson, who are full-time members, and other members, who are part-time members. The Chairperson, Vice-chairperson and other members are to be appointed by the Governor in Council on the recommendation of the Minister.
Chief executive officer
151. (1) The Chairperson is the chief executive officer of the Tribunal and has supervision over and direction of the Tribunal’s work, including
(a) the assignment and reassignment to panels of matters that the Tribunal is to deal with;
(b) the composition of panels and the assignment of Tribunal members to preside over them;
(c) the determination of the date, time and place of hearings;
(d) the conduct of the Tribunal’s work;
(e) the management of the Tribunal’s internal affairs; and
(f) the functions of the Tribunal’s staff.
Delegation
(2) The Chairperson may delegate to the Vice-chairperson any of the Chairperson’s powers and functions under subsection (1), and may delegate to a member of the staff of the Tribunal any of the Chairperson’s powers and functions under paragraph (1)(e) or (f).
Absence, etc., of Chairperson
(3) If the Chairperson is absent or unable to act or if the office of Chairperson is vacant, the Vice-chairperson is to act in the Chairperson’s place.
Absence, etc., of Chairperson and Vice-chairper­son
(4) If both the Chairperson and the Vice-chairperson are absent or unable to act or if both offices are vacant, the Minister may designate another member to act in the Chairperson’s place.
Tenure
152. (1) Tribunal members hold office during good behaviour for a term not exceeding five years, but may be removed by the Governor in Council at any time for cause.
Reappointment
(2) Tribunal members may be reappointed to the Tribunal.
Knowledge
153. A person is not eligible to be appointed as a Tribunal member unless the person is knowledgeable about Canada’s fisheries resources or about administrative decision making.
Conflict of interest
154. (1) A person is not eligible to be appointed or to continue as a Tribunal member if the person is, directly or indirectly, engaged — as owner, shareholder, director, officer, partner or otherwise — in a fishing enterprise, or is a member of a fisheries organization or holds an office in one.
Inheritance
(2) A Tribunal member who becomes engaged in a fishing enterprise by will or succession must become disengaged from the enterprise within 90 days after the day on which they became engaged in it.
Other employment
155. Tribunal members must not accept or hold any office or employment inconsistent with their powers and functions under this Act.
Remuneration
156. (1) The Chairperson, Vice-chairperson and other Tribunal members are to be paid the remuneration that is fixed by the Governor in Council.
Expenses
(2) Tribunal members are entitled to be paid reasonable travel and other expenses incurred by them in the course of their functions under this Act while absent from, in the case of the Chairperson and Vice-chairperson, their ordinary place of work and, in the case of the other members, their ordinary place of residence.
Pension
(3) A Tribunal member is not employed in the public service for the purposes of the Public Service Superannuation Act unless the Governor in Council provides that the member is employed in the public service for those purposes.
Workers’ compensation
(4) For the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act, a Tribunal member is employed in the federal public administration.
Acting after expiry of term
157. If a person who is engaged as a Tribunal member in respect of any matter ceases to be a member before rendering a decision in respect of the matter, the person may, with the authorization of the Chairperson or Vice-chairperson, continue to act as a member in respect of the matter during a period not exceeding 180 days after the day on which they ceased to be a member.
Services and Facilities and Staffing
Secretary and other staff
158. (1) The secretary and other staff necessary for the proper conduct of the Tribunal’s business are to be appointed in accordance with the Public Service Employment Act.
Technical experts
(2) The Tribunal may engage persons who have technical or special knowledge to assist or advise the Tribunal in any matter, and, subject to the approval of the Treasury Board, may fix their remuneration.
Government services and facilities
159. In exercising its powers and performing its functions, the Tribunal must, when appropriate, make use of the services and facilities of departments and agencies of the Government of Canada.
Sharing of information
160. The Tribunal must, at the request of the Minister, provide the Minister with information about appeals made under section 32 and proceedings in respect of violations.
Annual report
161. (1) The Tribunal must, as soon as possible after the end of each fiscal year, prepare a report on the administration of the provisions of this Part and the regulations made under this Part in that fiscal year.
Report to Parliament
(2) The Minister must cause the report to be laid before each house of Parliament.
Procedural Matters
Exercise of jurisdiction
162. The jurisdiction of the Tribunal is to be exercised in any matter by one or more Tribunal members assigned by the Chairperson to that matter, and an order made by the member or members is an order of the Tribunal.
Right to appear
163. All parties to a proceeding before the Tribunal may appear in person or be represented by counsel or by an agent or other representative.
Powers
164. (1) The Tribunal may summon any person to appear as a witness before it and may order the witness to
(a) give evidence orally or in writing; and
(b) produce any documents and things that the Tribunal considers necessary or desirable for the purpose of exercising any of its powers or performing any of its functions.
Fees for witnesses
(2) A witness who receives a summons under subsection (1) is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.
Enforcement of summonses and orders
165. (1) Any summons to a witness issued by the Tribunal or order made by the Tribunal may be made a summons to a witness or an order of the Federal Court or of the superior court of a province and is enforceable in the same manner as a summons to a witness or an order of that court.
Procedure
(2) To make a summons or order of the Tribunal a summons or order of the Federal Court or of the superior court of a province, the usual practice and procedure of the court in such matters may be followed, or the secretary of the Tribunal may file a certified copy of the summons or order with the registrar of the court.
Publication
166. (1) The Tribunal must publish its decisions and orders in the manner that it considers appropriate.
Persons’ identities
(2) The information in a decision or order published under subsection (1) may include the names and addresses of the persons at issue.
By-laws
167. The Tribunal may make by-laws respecting its internal administrative affairs, including the calling of meetings and the conduct of business at meetings.
Rules
168. The Tribunal may, with the approval of the Governor in Council, make
(a) rules governing its practice and procedure; and
(b) rules for preventing trade secrets and information described in section 20 of the Access to Information Act from being disclosed or made public as a result of their use as evidence before the Tribunal, including rules providing for hearings to be held in private.
Licence Appeals
Disposition of appeal
169. The Tribunal must, in accordance with this Act and the regulations, dispose of an appeal made under section 32
(a) by allowing the appeal and directing the licensing officer to issue the licence applied for; or
(b) by dismissing the appeal.
Violations
Application
Sections 172 to 206
170. Sections 172 to 206 apply in respect of prescribed licences or prescribed classes of licences.
Definition of “person”
171. In sections 172 to 206, “person” means
(a) a holder of a licence referred to in section 170, or of a licence that belongs to a class referred to in that section; and
(b) any other person who is authorized to fish under the authority of such a licence.
Classification
Major or minor
172. A violation is either a major or a minor violation.
Major violations
173. A major violation is
(a) a contravention of a provision of this Act or the regulations that is prescribed by regulations made under subparagraph 206(1)(c)(i);
(b) a contravention of
(i) a condition of a licence, or
(ii) a provision of a fisheries management order
that belongs to a class prescribed by regulations made under subparagraph 206(1)(c)(ii);
(c) a contravention of an order made under subsection 198(1) or section 199; or
(d) a minor violation that a case presentation officer chooses under subsection 182(1) to treat as a major violation.
Minor violations
174. A minor violation is
(a) a contravention of a provision of this Act or the regulations that is prescribed by regulations made under subparagraph 206(1)(d)(i); or
(b) a contravention of
(i) a condition of a licence, or
(ii) a provision of a fisheries management order
that belongs to a class prescribed by regulations made under subparagraph 206(1)(d)(ii).
Violation not an offence
175. (1) A contravention that is a violation may not be proceeded with as an offence.
Violation not an offence
(2) A violation is not an offence.
Non-application of section 126 of the Criminal Code
(3) Section 126 of the Criminal Code does not apply in respect of any obligation or prohibition under this Act whose contravention is a violation under this Act.
Liability for Violations
Direct and vicarious liability
176. A holder is liable not only for a violation that the holder actually commits but also for a violation that is committed by a person who is authorized to fish under the authority of the holder’s licence, whether or not the person who actually committed the violation is identified or proceeded against in accordance with this Act.
Limitation
177. A notice of major violation or a notice of minor violation may not be served on a person later than two years after the day on which evidence of the violation first came to the attention of a fishery officer or fishery guardian.
Excuses
178. (1) A person is not liable for a violation if they establish that they
(a) exercised all due diligence to prevent its commission; or
(b) reasonably and honestly believed in the existence of facts that, if true, would render their conduct innocent.
Excuse unique to person
(2) The fact that a person is not liable for a violation because they have an excuse under subsection (1) does not mean that no other person is liable for the violation.
Continuing violations
179. A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Case Presentation Officers
Designation
180. The Minister may designate any indi- viduals employed in the Department of Fisheries and Oceans or class of those individuals as case presentation officers for the purposes of this Act or the regulations.
Procedure for Violations
Notices of Violation
Notice of major violation
181. A case presentation officer who has reasonable grounds to believe that a person is liable for a major violation may complete a notice of major violation and have it served on the person and sent to the Tribunal.
Minor violation treated as major
182. (1) A case presentation officer who has reasonable grounds to believe that a person is liable for a minor violation may choose to treat the violation as a major violation if no notice of minor violation in respect of the violation has been served under section 184 and
(a) during the five years before the violation was committed, the person has been liable for at least two other violations
(i) for which an order has been made under paragraph 196(b), subsection 198(1) or section 199, or
(ii) for which the person has made a payment under paragraph 185(1)(a); or
(b) in the prescribed circumstances, the case presentation officer is of the opinion, having regard to the effect or potential effect of the commission of the violation on fisheries resources, that the violation should be treated as a major violation.
Minor violation treated as major
(2) If a case presentation officer chooses to treat the minor violation as a major one, then section 181 applies.
Person’s options — major violation
183. (1) A person may, within 30 days after the day on which they are served with a notice of major violation or within any further time that the Tribunal on application allows, request a hearing or an opportunity to make written representations by signing the relevant request on the notice and sending the request to the Tribunal.
If no response
(2) If the person does not request a hearing or an opportunity to make written representations in accordance with subsection (1), the Tribunal may declare that the person is liable for the violation and may make an order under subsection 198(1) or section 199 or both.
Settlement
(3) The case presentation officer and the person may, at any time before the Tribunal makes an order in respect of the violation, agree on what sanction or sanctions should be imposed under subsection 198(1) or section 199 or both.
Notice of minor violation
184. A fishery officer or fishery guardian who has reasonable grounds to believe that a person is liable for a minor violation may complete a notice of minor violation containing an assessment of a monetary penalty, and have the notice served on the person.
Person’s options — minor violation
185. (1) A person may, within 30 days after the day on which they are served with a notice of minor violation, or within any further time that the Tribunal on application allows,
(a) pay an amount equal to one half of the monetary penalty by sending the notice, along with that amount, to the place specified in the notice; or
(b) contest the assessment of the monetary penalty by signing the request for an opportunity to make written representations on the notice and sending the request to the Tribunal.
Forfeiture of fish
(2) If a person from whom any fish is seized in relation to a minor violation makes a payment under paragraph (1)(a) in respect of the violation, the fish, or any proceeds of its disposition, is forfeited to Her Majesty in right of Canada.
Disposition of forfeited fish
(3) Any fish that is forfeited under subsection (2) may be disposed of after its forfeiture in any manner that the Minister directs.
If no response
(4) If the person does not make a payment or request an opportunity to make written representations in accordance with subsection (1), the Tribunal may declare that the person is liable for the violation and may make an order under paragraph 196(b).
Hearing
Hearing to be held
186. If the Tribunal receives a request for a hearing made in accordance with subsection 183(1), it must hold a hearing and make one of the declarations referred to in section 195.
Written Representations
Notification
187. If the Tribunal receives a request for an opportunity to make written representations in accordance with subsection 183(1) or paragraph 185(1)(b), it must inform a Regional Director General or Associate Regional Director General of the Department of Fisheries and Oceans of the request within 15 days after the day on which it was received.
Case presentation officer’s statement
188. (1) Within 30 days after the day on which the Regional Director General or Associate Regional Director General is informed of the request or within any further time that the Tribunal on application allows, a case presentation officer must serve on the person who made the request, and send to the Tribunal, a statement
(a) setting out any written representations of the case presentation officer with respect to the matters referred to in section 191; and
(b) containing any documentary evidence — which need not be on oath — that the case presentation officer wishes to present in support of those representations.
Notice of right to make representations
(2) The statement that is served on the person must be accompanied by a notice setting out the right of the person to make the statement referred to in section 189.
Right to make written representations
189. The person may, within 30 days after the day on which they were served with the statement referred to in section 188 or within any further time that the Tribunal on application allows, send to the Tribunal a statement
(a) setting out any written representations with respect to the matters referred to in section 191 and to any extension of time for paying any monetary penalty that has been assessed or that may be ordered; and
(b) containing any documentary evidence — which need not be on oath — that the person wishes to present in support of those representations.
Case presentation officer notified
190. The Tribunal must send a copy of any statement sent to it under section 189 to the case presentation officer within 15 days after the day on which it receives the statement.
Written representations
191. Written representations in respect of a violation may be made with respect to the following matters:
(a) whether the person is liable for the violation; and
(b) in the case of a major violation,
(i) whether anything that is seized in relation to the violation, other than fish or an aquatic plant, ought to be forfeited, and
(ii) which sanction or sanctions should be imposed under subsection 198(1) or section 199 or both.
Opportunity for additional written representations
192. The person and the case presentation officer each may apply to the Tribunal for an opportunity to make, by way of a statement, additional written representations in the manner and within the time that the Tribunal directs.
Tribunal to consider matter
193. The Tribunal must consider any statements referred to in sections 188, 189 and 192 that it receives within the applicable periods provided for in those sections, and must then make a decision under section 195, in the case of a major violation, or section 196, in the case of a minor violation.
Tribunal’s Decision and Sanctions
Burden of proof
194. A case presentation officer has the legal burden of establishing, on a balance of probabilities, that a person is liable for a violation.
Tribunal’s decision — major violation
195. In a proceeding in respect of a major violation, the Tribunal must
(a) declare that the person is not liable for the violation;
(b) declare that the person is liable for the violation and make an order under subsection 198(1) or section 199 or both; or
(c) if an agreement has been entered into under subsection 183(3), declare that the person is liable for the violation and make the order under subsection 198(1) or section 199 or both imposing the sanctions provided for in the agreement, unless the Tribunal considers that it would not be in the public interest to do so.
Tribunal’s decision — minor violation
196. In a proceeding in respect of a minor violation, the Tribunal must
(a) declare that the person is not liable for the minor violation; or
(b) declare that the person is liable for the minor violation and make an order confirming the assessment of the monetary penalty against the person.
Decision final
197. A decision made by the Tribunal is final and is binding on the parties to the proceedings.
Sanctions — major violations
198. (1) If a person is liable for a major violation, the Tribunal must, having regard to any guidelines established under subsection 43(3) and to the nature of the violation and the circumstances surrounding its commission, make an order imposing one or more of the following sanctions:
(a) revoking or suspending the person’s licence, if the person is a holder, for any period that the Tribunal considers appropriate;
(b) prohibiting the person from applying for any licence during any period that the Tribunal considers appropriate;
(c) directing the person to pay a monetary penalty not exceeding $30,000;
(d) directing the person to pay the reasonable costs incurred in the seizure, detention, maintenance or disposition of any fish, aquatic plant or other thing seized in relation to the violation;
(e) prohibiting the person from doing any act or engaging in any activity that might, in the Tribunal’s opinion, result in the continuation or repetition of the violation;
(f) directing the person to take any action that the Tribunal considers appropriate to prevent or remedy any harm to any fish or fishery or to fish habitat that resulted or might result from the commission of the violation;
(g) directing the person to publish, in any manner that the Tribunal considers appropriate, the facts relating to the commission of the violation;
(h) directing the person to post a bond in an amount that the Tribunal considers appropriate for the purpose of ensuring compliance with any prohibition or direction referred to in this section;
(i) directing the person to submit to a Regional Director General or Associate Regional Director General of the Department of Fisheries and Oceans, within three years after the day on which the order is made, any information respecting the person’s activities that is requested by the Regional Director General or Associate Regional Director General and that relates to a matter specified in the order;
(j) varying or rescinding, in whole or in part, any condition of the person’s licence, if the person is a holder, relating to the number or quantity of fish that may be caught;
(k) establishing conditions to be included in any future licence that the person might hold on the number or quantity of fish that may be caught;
(l) establishing conditions to be included in any future licence that the person might hold on the amount or type of fishing gear or equipment that may be used; and
(m) directing the person to comply with any other conditions that the Tribunal considers appropriate for ensuring the person’s good conduct and for preventing the person from repeating the violation or committing other violations under this Act.
Publication
(2) If a person does not comply with a sanction imposed under paragraph (1)(g), the Tribunal may publish the facts relating to the commission of the violation and recover the costs of publication from the person.
Sanction — additional monetary penalty
199. If a person is liable for a major violation and the Tribunal is satisfied that, as a result of the commission of the violation, financial benefits accrued to the person, the Tribunal may, despite paragraph 198(1)(c), make an order assessing an additional monetary penalty against the person in an amount equal to the amount of those benefits as determined by the Tribunal.
Enforcement of Sanctions
Debts due to Her Majesty
200. (1) The following amounts constitute debts due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction:
(a) the amount of a monetary penalty that is assessed against a person under this Part — other than one for which the person has made a payment under paragraph 185(1)(a) — or whose assessment against a person is confirmed by the Tribunal under this Part, from the time that it is assessed or confirmed or from any later time fixed by the Tribunal on extending the time for paying it;
(b) costs directed to be paid under an order made imposing a sanction under paragraph 198(1)(d), from the time of the order; and
(c) costs incurred by the Tribunal under subsection 198(2) in publishing the facts relating to the commission of a violation, from the time that the Tribunal incurs those costs.
Fishing vessels
(2) If the debtor referred to in subsection (1) is a fishing vessel, then a lien attaches to the fishing vessel for the amount of the debt, and the lien has priority over all other rights, interests, claims and demands whatever, except for masters’ and crew members’ claims that arise under the Canada Shipping Act, 2001 in respect of their employment on the vessel.
Extinguishment of debts
(3) Subject to subsection 202(3), an unpaid debt under this section is extinguished five years after the day on which it becomes due, and the lien, if any, that was attached under subsection (2) expires at the same time.
Recovery of debts in civil courts
201. (1) If an amount that constitutes a debt under section 200 is not paid, the Attorney General of Canada may, by filing a certified copy of the order in respect of the amount, enter judgment for the amount of the debt and costs, if any, in any civil court in Canada that has jurisdiction to enter a judgment for that amount.
Effect of filing order
(2) A judgment that is entered under this section is enforceable against the debtor in the same manner as if it were a judgment obtained against that person in that court in a civil proceeding by Her Majesty in right of Canada.
Revocation and suspension of licences
202. (1) If an amount that constitutes a debt under section 200 is not paid or if a person does not comply with an order of the Tribunal made under subsection 198(1) or section 199, the Tribunal may
(a) revoke or suspend a licence held by the person, if the person is a holder; and
(b) prohibit the person from applying for any licence.
Limitation
(2) Subject to subsection (3), no action may be taken under subsection (1) more than five years after the day on which the order is made.
Continuation of revocation, etc.
(3) If action is taken under subsection (1) within five years after the day on which the debt becomes due, the lien attaches or the order is made, action may continue to be taken under that subsection at any time while the amount remains unpaid or the person does not comply with the order.
Removal of suspension or prohibition
(4) A suspension under paragraph (1)(a) or a prohibition under paragraph (1)(b) ceases to have effect on the payment of the amount or on compliance with the order.
Revocation or suspension of licence
203. If a licence is revoked, suspended or modified under this Part, the holder must return it without delay to a licensing officer.
Variation of orders
204. (1) Despite section 197, if the Tribunal has made an order imposing a sanction under any of paragraphs 198(1)(c) to (m) it may, on application by the Minister or the person to whom the order applies, require the person to appear before it and, after hearing the person and the Minister, vary the order in one or more of the following ways that it considers appropriate owing to a change in the person’s circumstances since the order was made:
(a) by changing any sanction set out in the order;
(b) by relieving the person, either absolutely or partially and for any period that the Tribunal considers appropriate, of compliance with any sanction set out in the order; and
(c) by increasing or decreasing the period during which the order is to remain in force.
Limitation
(2) If the Tribunal has heard an application under subsection (1), no other application may be made in respect of the same order except with the Tribunal’s permission.
Non-application of section 127 of the Criminal Code
205. Section 127 of the Criminal Code does not apply in respect of the disobedience of an order made by the Tribunal under section 196, subsection 198(1) or section 199.
Regulations
Governor in Council
206. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations
(a) prescribing licences or classes of licences for the purposes of section 32;
(b) prescribing licences or classes of licences for the purposes of section 170;
(c) prescribing, in respect of a prescribed licence or class of licence,
(i) provisions of this Act or the regulations the contravention of which constitutes a major violation, and
(ii) classes of conditions of a licence and classes of provisions of a fisheries management order the contravention of which constitutes a major violation;
(d) prescribing, in respect of a prescribed licence or class of licence,
(i) provisions of this Act or the regulations the contravention of which constitutes a minor violation, and
(ii) classes of conditions of a licence and classes of provisions of a fisheries management order the contravention of which constitutes a minor violation;
(e) establishing short-form descriptions of violations;
(f) prescribing amounts not exceeding $3,000 as the monetary penalties for minor violations;
(g) establishing, subject to subsection (2), the form and content of notices of major violation and notices of minor violation;
(h) prescribing the circumstances referred to in paragraph 182(1)(b); and
(i) imposing fees to be charged with respect to appeals made under section 32 and proceedings in relation to violations, and prescribing the amounts of those fees.
Notices of violation
(2) Notices of major violation and notices of minor violation must
(a) set out the options of the person served with the notice with respect to responding to the notice and the time within which the person must respond;
(b) be in both official languages and provide an opportunity for the person to indicate in which official language they wish a hearing to be held or the representations of the case presentation officer to be made;
(c) state that any fish that is seized in relation to the violation will be forfeited to Her Majesty in right of Canada if the person makes a payment in accordance with paragraph 185(1)(a) or if it is established that the fish was caught, killed, processed, landed, transported, imported, purchased, sold or possessed in contravention of this Act or the regulations; and
(d) indicate that the consequence of not responding to the notice is that a default decision will be made by the Tribunal.
PART 6
REGULATIONS AND RELATED MATTERS
Regulations
Governor in Council
207. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations
(a) prescribing the powers and functions of persons engaged in the administration or enforcement of this Act or the regulations, and respecting the exercise of those powers and the performance of those functions;
(b) making applicable to any area of the sea referred to in section 5 any regulations made under this Act;
(c) respecting the manner of service and the giving and sending of summonses, notices, statements and other documents under this Act;
(d) requiring any person to keep any record, book or other document containing any information relevant to the administration or enforcement of this Act or the regulations, and respecting where, how and how long they are to be kept; and
(e) requiring, in prescribed circumstances, any person who is required to keep anything referred to in paragraph (d) to disclose it to any person, and respecting how it is to be disclosed.
Incorporation by Reference
Externally produced material
208. (1) A regulation made under this Act may incorporate by reference material produced by a person or body other than the Minister, including by a government, a government agency or an international body.
Jointly produced material
(2) A regulation made under this Act may incorporate by reference material produced jointly by the Minister and a government or government agency for the purpose of harmonizing the regulation with other laws.
Internally produced standards
(3) A regulation made under this Act may incorporate by reference technical or explanatory material produced by the Minister, such as specifications, test methods, procedures, construction standards, operational standards, safety standards and performance standards of a technical nature.
Incorporation as amended from time to time
(4) Material may be incorporated by reference as amended from time to time.
Incorporated material is not a regulation
(5) Material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act.
Interpretation
(6) Subsections (1) to (5) do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.
Defence
209. If a provision of a regulation made under this Act incorporates material by reference, then no person may be convicted of an offence, or subjected to a penalty, for the contravention of the provision unless it is proved that, at the time of the alleged contravention,
(a) the material was reasonably accessible to the person;
(b) reasonable steps had been taken to ensure that the material was accessible to persons likely to be affected by the regulation; or
(c) the material had been published in the Canada Gazette.
Exemptions from Statutory Instruments Act
Not statutory instruments
210. (1) The following are not statutory instruments for the purposes of the Statutory Instruments Act:
(a) licences; and
(b) fisheries management agreements.
Not regulations
(2) The following are not regulations for the purposes of the Statutory Instruments Act:
(a) interim orders made under subsection 27(2);
(b) allocation orders;
(c) fisheries management orders; and
(d) orders made under subsection 61(3).
PART 7
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEALS AND COMING INTO FORCE
Transitional Provisions
Committees
211. Any committee established under subsection 7(1) of the Fisheries Development Act that is operating on the day on which section 248 of this Act comes into force is deemed to be an advisory panel established under subsection 14(1) of this Act, and its members are deemed to have been appointed under that subsection.
Allocations
212. The Minister must publish, on the day on which section 37 comes into force, any allocation that the Minister considers to be in effect on that day, and subsection 37(3) does not apply in respect of such an allocation.
Nisga’a annual fishing plan
213. A fishing plan, as defined in subsection 47(1) of this Act, that stipulates that subsection 33.1(2) of the Fisheries Act applies to any of its provisions is deemed to stipulate that subsection 47(2) of this Act applies to those provisions.
Repeal of regulations
214. The Governor in Council may, on the recommendation of the Minister, repeal any regulations made under the Fisheries Act.
Fees
215. Any fees fixed by the Fisheries Act or by regulations referred to in section 214 of this Act remain in effect and are deemed to have been fixed by the Minister in accord- ance with sections 16 to 19 of this Act.
Consequential Amendments
R.S., c. A-1
Access to Information Act
216. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:
Canada Fisheries Tribunal
Office des pêches du Canada
R.S., c. A-12
Arctic Waters Pollution Prevention Act
217. Section 27 of the Arctic Waters Pollution Prevention Act is replaced by the following:
Protection of persons claiming interest
27. (1) Sections 99 to 107 of the Fisheries Act, 2007 apply, with any modifications that the circumstances require, in respect of any ship and cargo forfeited under this Act as though they were things forfeited under subsection 91(2) of that Act.
Reading references in applying Fisheries Act, 2007
(2) In applying sections 99 to 107 of the Fisheries Act, 2007 for the purposes of this Act, the references to “the Minister” in sections 100, 101, 105 and 106 of that Act shall be read as references to the “Governor in Council”.
2002, c. 18
Canada National Marine Conservation Areas Act
218. The definition “fishing” in subsection 2(1) of the Canada National Marine Conservation Areas Act is replaced by the following:
“fishing”
« pêche »
“fishing” has the meaning given to that expression in the Fisheries Act, 2007.
219. Subsections 15(2) and (3) of the Act are replaced by the following:
Fishing licences
(2) A fishing licence issued under the Fisheries Act, 2007 is deemed to be a permit issued under this Act to carry out the activities permitted by the licence, subject to regulations made under subsection 16(1) on the recommendation of the Minister and the Minister of Fisheries and Oceans.
Superintendent may not amend
(3) For greater certainty, the superintendent of a marine conservation area may not amend, suspend or revoke a fishing licence issued under the Fisheries Act, 2007.
2001, c. 26, s. 322(3)
220. Subsection 16(5) of the Act is replaced by the following:
Conflicts
(5) Regulations referred to in subsections (2) to (4) prevail over regulations and fisheries management agreements made under the Fisheries Act, 2007 and over regulations made under the Coastal Fisheries Protection Act, the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act, the Navigable Waters Protection Act or the Aeronautics Act to the extent of any conflict between them.
1999, c. 33
Canadian Environmental Protection Act, 1999
221. The definition “fish” in section 43 of the Canadian Environmental Protection Act, 1999 is replaced by the following:
“fish”
« poissons »
“fish” has the meaning assigned by section 3 of the Fisheries Act, 2007.
222. Section 131 of the Act is replaced by the following:
Fisheries Act, 2007 not applicable
131. If a person disposes of a substance in accordance with the conditions of a Canadian permit or section 130, subsection 60(2) of the Fisheries Act, 2007 is not applicable.
223. The portion of section 195 of the Act before paragraph (a) is replaced by the following:
Research
195. Despite subsection 60(2) of the Fisheries Act, 2007, subsection 123(1) and regulations made under paragraphs 93(1)(a), (b), (c) and (d) and 209(2)(a), (b), (c) and (d), the Minister may
R.S., c. C-33
Coastal Fisheries Protection Act
1999, c. 19, s. 1(3)
224. Paragraph (a) of the definition “protection officer” in subsection 2(1) of the Coastal Fisheries Protection Act is replaced by the following:
(a) a fishery officer designated under the Fisheries Act, 2007,
1994, c. 14, s. 3
225. Paragraph 6(b.5) of the Act is replaced by the following:
(b.5) prescribing forms that may be used instead of the forms set out in Part XXVIII of the Criminal Code in proceedings against fishing vessels under this Act or the Fisheries Act, 2007;
1994, c. 14, s. 7
226. Section 18.5 of the Act is replaced by the following:
Proceedings against fishing vessels
18.5 All the provisions of this Act and the Criminal Code or the Fisheries Act, 2007 and the Criminal Code relating to indictable offences that are applicable to or in respect of persons apply, in their application to indictable offences created by this Act or the Fisheries Act, 2007, to or in respect of fishing vessels, with any modifications that the circumstances require, and all the provisions of this Act and the Criminal Code or the Fisheries Act, 2007 and the Criminal Code relating to summary conviction offences that are applicable to or in respect of persons apply, in their application to all other offences created by this Act or the Fisheries Act, 2007, to or in respect of fishing vessels, with any modifications that the circumstances require.
1992, c. 47
Contraventions Act
227. Section 3 of the schedule to the Contraventions Act and the heading before it are repealed.
R.S., c. C-46
Criminal Code
1995, c. 29, s. 40
228. Paragraph (e) of the definition “peace officer” in section 2 of the Criminal Code is replaced by the following:
(e) a person designated as a fishery guardian under the Fisheries Act, 2007 when performing any duties or functions under that Act, and a person designated as a fishery officer under the Fisheries Act, 2007 when performing any duties or functions under that Act or the Coastal Fisheries Protection Act,
1992, c. 36
Energy Efficiency Act
229. Section 18 of the Energy Efficiency Act is replaced by the following:
Protection of persons claiming interest
18. Sections 99 to 107 of the Fisheries Act, 2007 apply, with any modifications that the circumstances require, to a thing forfeited under section 15 or 16, or an energy-using product forfeited under section 17, as though it were a thing forfeited under subsection 91(2) of that Act.
R.S., c. F-11
Financial Administration Act
230. Schedule I.1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I:
Canada Fisheries Tribunal
Office des pêches du Canada
and a corresponding reference in column II to the “Minister of Fisheries and Oceans”.
231. Schedule IV to the Act is amended by adding the following in alphabetical order:
Canada Fisheries Tribunal
Office des pêches du Canada
2005, c. 48
First Nations Oil and Gas and Moneys Management Act
232. Paragraph 36(c) of the First Nations Oil and Gas and Moneys Management Act is replaced by the following:
(c) fish and fish habitat, within the meaning of the Fisheries Act, 2007, migratory birds, within the meaning of the Migratory Birds Convention Act, 1994, and species at risk, within the meaning of the Species at Risk Act; or
R.S., c. F-24
Fishing and Recreational Harbours Act
233. Subsection 16(3) of the Fishing and Recreational Harbours Act is replaced by the following:
Protection of persons claiming interest
(3) Sections 99 to 107 of the Fisheries Act, 2007 apply, with any modifications that the circumstances require, in respect of anything forfeited under subsection (2) as though it were a thing forfeited under subsection 91(2) of that Act.
R.S., c. F-13
Freshwater Fish Marketing Act
234. (1) The definition “fisherman” in section 19 of the English version of the Freshwater Fish Marketing Act is repealed.
(2) The definition “pêcheur” in section 19 of the French version of the Act is replaced by the following:
« pêcheur »
“fisher”
« pêcheur » Titulaire d’un permis de pêche commerciale dans une province participante, délivré aux termes de la Loi de 2007 sur les pêches ou de ses règlements, y compris toute personne agissant pour le compte de plusieurs titulaires.
(3) Section 19 of the English version of the Act is amended by adding the following in alphabetical order:
“fisher”
« pêcheur »
“fisher” means a person licensed under the Fisheries Act, 2007 or the regulations made under that Act to fish for commercial purposes in a participating province, and includes any person acting on behalf of and representing any two or more persons so licensed.
235. Subsection 22(2) of the English version of the Act is replaced by the following:
Corporation to buy all fish offered
(2) All fish lawfully fished by a fisher and offered by the fisher for sale to the Corporation for disposal in interprovincial or export trade shall be bought by the Corporation from the fisher on the terms and conditions and for the price that are agreed on by the Corporation and the fisher subject to any applicable scheme for payment established and operated by the Corporation under section 23.
2001, c. 6
Marine Liability Act
236. Subsection 88(1) of the Marine Lia- bility Act is replaced by the following:
Meaning of terms
88. (1) In this section, “fish”, “fishing” and “fishing vessel” have the same meaning as in section 3 of the Fisheries Act, 2007.
1992, c. 39
Northwest Territories Waters Act
237. Subsection 15(5) of the Northwest Territories Waters Act is replaced by the following:
Conditions relating to waste, where regulations under Fisheries Act, 2007 apply
(5) Where the Board issues a licence in respect of any waters that do not form part of a water quality management area designated pursuant to the Canada Water Act, and to which any regulations referred to in paragraph 60(3)(b) of the Fisheries Act, 2007 apply, the Board may not include in the licence any conditions relating to the deposit of waste in those waters that are less stringent than the provisions of those regulations.
2002, c. 10
Nunavut Waters and Nunavut Surface Rights Tribunal Act
238. Section 73 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act is replaced by the following:
Regulations under Fisheries Act, 2007
73. Where the Board issues a licence in respect of any waters to which regulations referred to in paragraph 60(3)(b) of the Fisheries Act, 2007 apply, any conditions in the licence relating to the deposit of waste in those waters shall be at least as stringent as the conditions prescribed by those regulations.
239. The definition “harvesting” in section 95 of the Act is replaced by the following:
“harvesting”
« exploitation »
“harvesting” means, in relation to wildlife, reduction into possession and includes hunting, trapping, fishing as defined in section 3 of the Fisheries Act, 2007, netting, egging, picking, collecting, gathering, spearing, killing, cap- turing or taking by any means.
R.S., c. P-19
Precious Metals Marking Act
240. Subsection 11(3) of the Precious Metals Marking Act is replaced by the following:
Protection of persons claiming interest
(3) Sections 99 to 107 of the Fisheries Act, 2007 apply, with any modifications that the circumstances require, to any article or printed or written matter forfeited under this section as though it were a thing forfeited under subsection 91(2) of that Act.
R.S., c. P-21
Privacy Act
241. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:
Canada Fisheries Tribunal
Office des pêches du Canada
R.S., c. P-36
Public Service Superannuation Act
242. Part II of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order:
Canada Fisheries Tribunal
Office des pêches du Canada
R.S., c. R-1
Radiation Emitting Devices Act
243. Subsection 16(4) of the Radiation Emitting Devices Act is replaced by the following:
Protection of persons claiming interest
(4) Sections 99 to 107 of the Fisheries Act, 2007 apply, with any modifications that the circumstances require, to any radiation emitting device forfeited under this section as though it were a thing forfeited under subsection 91(2) of that Act.
2002, c. 29
Species at Risk Act
244. The definition “aquatic species” in subsection 2(1) of the Species at Risk Act is replaced by the following:
“aquatic species”
« espèce aquatique »
“aquatic species” means a wildlife species that is a fish or a marine plant as defined in section 3 of the Fisheries Act, 2007.
R.S., c. T-10
Textile Labelling Act
245. Subsection 16(2) of the Textile Labelling Act is replaced by the following:
Protection of persons claiming interest
(2) Sections 99 to 107 of the Fisheries Act, 2007 apply, with any modifications that the circumstances require, to any textile fibre product or other thing forfeited under this section as though it were a thing forfeited under subsection 91(2) of that Act.
Repeals
Repeal of R.S., c. A-14
246. The Atlantic Fisheries Restructuring Act is repealed.
Repeal of R.S., c. F-14
247. The provisions of the Fisheries Act are repealed on a day or days to be fixed by order of the Governor in Council.
Repeal of R.S., c. F-21
248. The Fisheries Development Act is repealed.
Repeal of R.S., c. F-22
249. The Fisheries Improvement Loans Act is repealed.
Repeal of R.S., c. F-17
250. The Great Lakes Fisheries Convention Act is repealed.
Coming into Force
Order in council
251. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Available from:
Publishing and Depository Services
Public Works and Government Services Canada



Explanatory Notes
Arctic Waters Pollution Prevention Act
Clause 217: Existing text of section 27:
27. (1) The provisions of sections 74 to 77 of the Fisheries Act apply, with such modifications as the circumstances require, in respect of any ship and cargo forfeited under this Act as though the ship and cargo were, respectively, a vessel and goods forfeited under subsection 72(1) of that Act.
(2) References to “the Minister” in sections 75 and 76 of the Fisheries Act shall, in applying those sections for the purposes of this Act, be read as references to the Governor in Council and the phrase “other than a person convicted of the offence that resulted in the forfeiture or a person in whose possession the vessel, vehicle, article, goods or fish were when seized” shall be deemed to include a reference to the owner of the ship where it is the ship that is convicted of the offence that results in the forfeiture.
Canada National Marine Conservation Areas Act
Clause 218: Existing text of the definition:
“fishing” has the meaning given to that expression in the Fisheries Act.
Clause 219: Existing text of subsections 15(2) and (3):
(2) A fishing licence issued under the Fisheries Act is deemed to be a permit issued under this Act to carry out the activities permitted by the licence, subject to regulations made under subsection 16(1) on the recommendation of the Minister and the Minister of Fisheries and Oceans.
(3) For greater certainty, the superintendent of a marine conservation area may not amend, suspend or revoke a fishing licence issued under the Fisheries Act.
Clause 220: Existing text of subsection 16(5):
(5) Regulations referred to in subsection (2), (3) or (4) prevail over regulations made under the Fisheries Act, the Coastal Fisheries Protection Act, the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act, the Navigable Waters Protection Act or the Aeronautics Act to the extent of any conflict between them.
Canadian Environmental Protection Act, 1999
Clause 221: Existing text of the definition:
“fish” has the meaning assigned by section 2 of the Fisheries Act.
Clause 222: Existing text of section 131:
131. If a person disposes of a substance in accordance with the conditions of a Canadian permit or section 130, subsection 36(3) of the Fisheries Act is not applicable.
Clause 223: Relevant portion of section 195:
195. Despite subsection 36(3) of the Fisheries Act, subsection 123(1) and regulations made under paragraphs 93(1)(a), (b), (c) and (d) and 209(2)(a), (b), (c) and (d), the Minister may
Coastal Fisheries Protection Act
Clause 224: Relevant portion of the definition:
“protection officer” means, subject to subsection 17(2),
(a) a fishery officer within the meaning of the Fisheries Act,
Clause 225: Relevant portion of section 6:
6. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act including, but not limited to, regulations
...
(b.5) prescribing forms that may be used instead of the forms set out in Part XXVIII of the Criminal Code in proceedings against fishing vessels under this Act or the Fisheries Act;
Clause 226: Existing text of section 18.5:
18.5 All the provisions of this Act and the Criminal Code or the Fisheries Act and the Criminal Code relating to indictable offences that are applicable to or in respect of persons apply, in their application to indictable offences created by this Act or the Fisheries Act, to or in respect of fishing vessels, with such modifications as the circumstances require, and all the provisions of this Act and the Criminal Code or the Fisheries Act and the Criminal Code relating to summary conviction offences that are applicable to or in respect of persons apply, in their application to all other offences created by this Act or the Fisheries Act, to or in respect of fishing vessels, with such modifications as the circumstances require.
Criminal Code
Clause 228: Relevant portion of the definition:
“peace officer” includes
...
(e) a person designated as a fishery guardian under the Fisheries Act when performing any duties or functions under that Act and a person designated as a fishery officer under the Fisheries Act when performing any duties or functions under that Act or the Coastal Fisheries Protection Act,
Energy Efficiency Act
Clause 229: Existing text of section 18:
18. Sections 74 to 76 of the Fisheries Act apply, with such modifications as the circumstances require, to a thing forfeited under section 15 or 16, or an energy-using product forfeited under section 17, as though it were a thing forfeited under subsection 72(1) of that Act.
First Nations Oil and Gas and Moneys Management Act
Clause 232: Relevant portion of section 36:
36. For greater certainty, the power of a first nation to make oil and gas laws does not extend to laws in relation to
...
(c) fish and fish habitat, within the meaning of the Fisheries Act, migratory birds, within the meaning of the Migratory Birds Convention Act, 1994, and species at risk, within the meaning of the Species at Risk Act; or
Fishing and Recreational Harbours Act
Clause 233: Existing text of subsection 16(3):
(3) Sections 74 to 77 of the Fisheries Act applies, with such modifications as the circumstances require, in respect of anything forfeited under subsection (2) as though it were an article forfeited under subsection 72(1) of that Act.
Freshwater Fish Marketing Act
Clause 234: (1) to (3) Existing text of the definition:
“fisherman” means a person licensed pursuant to the Fisheries Act or the regulations thereunder to fish for commercial purposes in a participating province, and includes any person acting on behalf of and representing any two or more persons so licensed.
Clause 235: Existing text of subsection 22(2):
(2) All fish lawfully fished by a fisherman and offered by the fisherman for sale to the Corporation for disposal in interprovincial or export trade shall be bought by the Corporation from the fisherman on such terms and conditions and for such price as may be agreed on by the Corporation and the fisherman subject to any applicable scheme for payment established and operated by the Corporation pursuant to section 23.
Marine Liability Act
Clause 236: Existing text of subsection 88(1):
88. (1) In this section, “fish”, “fishing” and “fishing vessel” have the same meaning as in section 2 of the Fisheries Act.
Northwest Territories Waters Act
Clause 237: Existing text of subsection 15(5):
(5) Where the Board issues a licence in respect of any waters that do not form part of a water quality management area designated pursuant to the Canada Water Act, and to which any regulations made under subsection 36(5) of the Fisheries Act apply, the Board may not include in the licence any conditions relating to the deposit of waste in those waters that are less stringent than the provisions of those regulations.
Nunavut Waters and Nunavut Surface Rights Tribunal Act
Clause 238: Existing text of section 73:
73. Where the Board issues a licence in respect of any waters to which regulations made under subsection 36(5) of the Fisheries Act apply, any conditions in the licence relating to the deposit of waste in those waters shall be at least as stringent as the conditions prescribed by those regulations.
Clause 239: Existing text of the definition:
“harvesting” means, in relation to wildlife, reduction into possession and includes hunting, trapping, fishing as defined in section 2 of the Fisheries Act, netting, egging, picking, collecting, gathering, spearing, killing, capturing or taking by any means.
Precious Metals Marking Act
Clause 240: Existing text of subsection 11(3):
(3) Sections 74 to 76 of the Fisheries Act applies, with such modifications as the circumstances require, in respect of any article or printed or written matter forfeited under subsection (1) or (2) as though that article or matter were an article forfeited under subsection 72(1) of that Act.
Radiation Emitting Devices Act
Clause 243: Existing text of subsection 16(4):
(4) The provisions of sections 74 to 76 of the Fisheries Act apply with such modifications as the circumstances require to any radiation emitting device forfeited under this section as though that device were an article forfeited under subsection 72(1) of that Act.
Species at Risk Act
Clause 244: Existing text of the definition:
“aquatic species” means a wildlife species that is a fish, as defined in section 2 of the Fisheries Act, or a marine plant, as defined in section 47 of that Act.
Textile Labelling Act
Clause 245: Existing text of subsection 16(2):
(2) Sections 74 to 76 of the Fisheries Act apply, with such modifications as the circumstances require, to any textile fibre product or other thing forfeited under this section as though that textile fibre product or other thing were an article forfeited under subsection 72(1) of that Act.


Table of Contents
Cover
Summary
Table of Provisions
Bill C-32
Table of Contents