Bill S-13

1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

senate of canada

BILL S-13

An Act to amend the Coastal Fisheries Protection Act

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

ALTERNATIVE TITLE

1. This Act may be cited as the Port State Measures Agreement Implementation Act.

COASTAL FISHERIES PROTECTION ACT

2. (1) The definitions “Agreement”, “fishing vessel of a participating state” and “participating state” in subsection 2(1) of the Coastal Fisheries Protection Act are repealed.

(2) The definitions “fish” and “fishing vessel” in subsection 2(1) of the Act are replaced by the following:

“fish” includes

(a) any part or derivative of a fish,

(b) shellfish, crustaceans, marine animals and any part or derivative of any of them, and

(c) the eggs, sperm, spawn, larvae, spat or juvenile stages, as the case may be, of fish, shellfish, crustaceans and marine animals;

“fishing vessel” means any of the following:

(a) a ship, boat or any other description of vessel that is used in or equipped for

(i) fishing, processing fish or transporting fish from fishing grounds,

(ii) taking, processing or transporting marine plants, or

(iii) provisioning, servicing, repairing or maintaining any vessels of a foreign fishing fleet while at sea,

(b) a ship, boat or any other description of vessel that is used in transhipping fish, or marine plants, that have not been previously landed;

(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“fisheries management organization” means an organization or arrangement established by two or more states, or by one or more states and an organization of states, for the purpose of the conservation and management of fish stocks in the sea or any area of the sea;

“fishing vessel of a state party to the Fish Stocks Agreement” means a foreign fishing vessel that is entitled to fly the flag of a state party to the Fish Stocks Agreement;

“Fish Stocks Agreement” means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in New York on August 4, 1995;

“flag state” means the state whose flag a fishing vessel is entitled to fly;

“marine plant” means a saltwater plant, including benthic and detached algae, flowering plants, brown algae, red algae, green algae and phytoplankton, and any part or derivative of a saltwater plant;

“Port State Measures Agreement” means the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, approved by the Conference of the Food and Agriculture Organization of the United Nations in Rome on November 22, 2009;

“state party to the Fish Stocks Agreement” means a foreign state or an organization of foreign states that is prescribed by regulation;

3. The portion of section 5.3 of the Act before paragraph (a) is replaced by the following:

5.3 No fishing vessel of a state party to the Fish Stocks Agreement shall, in an area of the sea designated under subparagraph 6(e)(ii),

4. The Act is amended by adding the following after section 5.5:

PROHIBITED IMPORT

5.6 (1) No person shall import any fish or marine plant knowing it to have been taken, harvested, possessed, transported, distributed or sold contrary to any of the following:

(a) an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;

(b) any conservation or management measures of a fisheries management organization of which Canada is not a member that is prescribed by regulation;

(c) a law related to fisheries of a foreign state.

(2) No person shall, in connection with the importation of any fish or marine plant, transport, sell, distribute, buy or accept the delivery of the fish or marine plant knowing that it was taken, harvested, possessed, transported, distributed or sold contrary to any of the following:

(a) an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;

(b) any conservation or management measures of a fisheries management organization of which Canada is not a member that is prescribed by regulation;

(c) a law related to fisheries of a foreign state.

5. (1) Paragraph 6(a) of the Act is amended by striking out “or” at the end of subparagraph (i), by adding “or” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

(iii) foreign fishing vessels that have been ordered to proceed to a Canadian port by their flag state, or foreign fishing vessels that have been ordered to proceed to a port by their flag state and that proceed to a Canadian port, to enter Canadian fisheries waters for any purpose related to verifying compliance with a law related to fisheries of a foreign state, with any conservation or management measures of a fisheries management organization or with any international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;

(2) Section 6 of the Act is amended by adding the following after paragraph (b.3):

(b.31) prescribing a fisheries management organization of which Canada is not a member for the purposes of paragraphs 5.6(1)(b) and (2)(b);

(3) The portion of paragraph 6(e) of the Act before subparagraph (ii) is replaced by the following:

(e) for the implementation of the Fish Stocks Agreement, including regulations

(i) incorporating by reference, or carrying out and giving effect to, any conservation or management measures, as of a fixed date or as they are amended from time to time, of a regional fisheries management organization or arrangement established by two or more states, or by one or more states and an organization of states, for the purpose of the conservation or management of a straddling fish stock or highly migratory fish stock, and designating from among the measures incorporated by reference or regulations made under this subparagraph those the contravention of which is prohibited by paragraph 5.3(a),

(4) Subparagraphs 6(e)(iii) and (iv) of the Act are replaced by the following:

(iii) setting out the circumstances in which a person engaged or employed in the administration or enforcement of this Act may exercise, in a manner consistent with the Fish Stocks Agreement and the measures incorporated by reference and the regulations made under subparagraph (i), the powers conferred by or under this Act and setting out any procedures to be followed in doing so,

(iv) empowering the Minister to authorize a state party to the Fish Stocks Agreement to take enforcement action in respect of a Canadian fishing vessel,

(5) Subparagraphs 6(e)(vi) and (vii) of the Act are replaced by the following:

(vi) permitting Her Majesty in right of Canada to recover any reasonable costs incurred as a result of the detention in port of a fishing vessel of a state party to the Fish Stocks Agreement, and

(vii) prescribing a state party to the Fish Stocks Agreement for the purposes of this Act; and

(6) Subparagraph 6(f)(i) of the Act is replaced by the following:

(i) incorporating by reference, or carrying out and giving effect to, any of those measures as of a fixed date or as they are amended from time to time and designating from among the measures incorporated by reference or regulations made under this subparagraph those the contravention of which is prohibited by section 5.4,

6. Sections 7 to 7.1 of the Act are replaced by the following:

7. For the purposes of sections 7.1, 7.4, 7.6 and 9, “place” includes

(a) a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area;

(b) any other vehicle, including a vessel or aircraft; and

(c) a container.

7.1 (1) A protection officer may, for a purpose related to verifying compliance with this Act, enter any place in which the protection officer has reasonable grounds to believe that

(a) there is any fish, marine plant or other thing in respect of which this Act applies;

(b) there has been carried on, is being carried on or is likely to be carried on any activity in respect of which this Act applies; or

(c) there are any records, books or other documents, including documents in electronic form, concerning anything referred to in paragraphs (a) and (b).

(2) Despite subsection (1), a protection officer may board a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area for a purpose related to verifying compliance with this Act.

(3) The protection officer referred to in subsection (1) or (2) may, for a purpose related to verifying compliance with this Act,

(a) examine anything in the place;

(b) use any means of communication in the place or cause it to be used;

(c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

(d) prepare a document, or cause one to be prepared, based on the data;

(e) use any copying equipment in the place or cause it to be used;

(f) conduct tests or analyses of anything in the place;

(g) take measurements or samples of anything in the place;

(h) take photographs or make recordings or sketches of anything in the place;

(i) remove anything found in the place;

(j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and

(k) prohibit or limit access to all or part of the place or to anything in the place.

(4) A protection officer may, for a purpose related to verifying compliance with a law related to fisheries of a foreign state, with any conservation or management measures of a fisheries management organization or with an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement, board a foreign fishing vessel that was authorized to enter Canadian fisheries waters under subparagraph 6(a)(iii).

(5) The protection officer may, for the purpose referred to in subsection (4), exercise the powers referred to in subsection (3) to the extent that the exercise of those powers is authorized by the foreign state or is provided for in the measures, treaty or arrangement in question.

(6) The owner or person in charge of a place and every person in the place shall give all assistance that is reasonably required to enable a protection officer to perform his or her functions under this section and shall provide any document or information, and access to any data, that is reasonably required for that purpose.

7.2 A protection officer may be accompanied by any other person that the protection officer believes is necessary to help him or her perform his or her functions under this Act.

7.3 A protection officer may, for a purpose related to verifying compliance with this Act, direct that any vehicle, including a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area, be stopped and moved to another location and may detain it for a reasonable time. The person in charge of the vehicle shall comply with the directions.

7.4 (1) If a place is a dwelling place, a protection officer may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

(2) On ex parte application, a justice of the peace may issue a warrant authorizing a protection officer to enter a dwelling place, subject to any conditions specified in the warrant, and authorizing any other person named in the warrant to accompany the protection officer, if the justice is satisfied by information on oath that

(a) the dwelling place is a place referred to in section 7.1;

(b) entry to the dwelling place is necessary to verify compliance with this Act; and

(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

7.5 (1) If a protection officer has reasonable grounds to believe that a fishing vessel of a state party to the Fish Stocks Agreement or of a state that is party to a treaty or arrangement described in paragraph 6(f) has engaged in unauthorized fishing in Canadian fisheries waters and the vessel is in an area of the sea designated under subparagraph 6(e)(ii) or (f)(ii), the officer may, with the consent of that state, take any enforcement action that is consistent with this Act.

(2) Subsection (1) does not affect any powers the protection officer has in the case of a pursuit that began while the vessel was in Canadian fisheries waters.

7.6 (1) A justice, as defined in section 2 of the Criminal Code, who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe that there is in a place any fish, marine plant or other thing that was obtained by or used in, or that will afford evidence in respect of, a contravention of this Act, may issue a warrant authorizing the protection officer named in the warrant to enter and search the place for the fish, marine plant or other thing, subject to any conditions specified in the warrant.

(2) A protection officer may exercise the powers referred to in subsection (1) without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain a warrant.

(3) A justice, as defined in section 2 of the Criminal Code, on ex parte application by a protection officer, may issue a warrant authorizing the protection officer named in the warrant to board a foreign fishing vessel that was authorized to enter Canadian fisheries waters under subparagraph 6(a)(iii) and search the vessel, or to enter any other place and search the other place, for any fish, marine plant or other thing, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

(a) there are reasonable grounds to believe that there is in the vessel any fish, marine plant or other thing that was obtained by or used in, or that will afford evidence in respect of, a contravention of a law related to fisheries of a foreign state, any conservation or management measures of a fisheries management organization or an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement, or there is in the other place any such fish, marine plant or other thing and that fish, marine plant or other thing is from the vessel; and

(b) the vessel’s flag state does not object to the search of the vessel.

(4) The foreign fishing vessel’s flag state is deemed to not object to the search if the protection officer has informed the flag state of his or her intention to apply for the warrant referred to in subsection (3) and the flag state has not communicated its objection within the period prescribed by regulation.

7. (1) Paragraph 9(b) of the Act is replaced by the following:

(b) any goods aboard a fishing vessel described in paragraph (a) or in any other place, including fish, marine plants, tackle, rigging, apparel, furniture, stores and cargo; or

(2) Paragraph 9(c) of the French version of the Act is replaced by the following:

(3) Section 9 of the Act is renumbered as subsection 9(1) and is amended by adding the following:

(2) A justice, as defined in section 2 of the Criminal Code, on ex parte application by a protection officer, may issue a warrant authorizing the protection officer named in the warrant to seize any fish, marine plant or other thing in a foreign fishing vessel that was authorized to enter Canadian fisheries waters under subparagraph 6(a)(iii) or in any other place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

(a) there are reasonable grounds to believe that there is in the vessel any fish, marine plant or other thing that was obtained by or used in, or that will afford evidence in respect of, a contravention of a law related to fisheries of a foreign state, any conservation or management measures of a fisheries management organization or an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement, or there is in the other place any such fish, marine plant or other thing and that fish, marine plant or other thing is from the vessel; and

(b) the vessel’s flag state does not object to the seizure.

(3) The foreign fishing vessel’s flag state is deemed to not object to the seizure if the protection officer has informed the flag state of his or her intention to apply for the warrant and the flag state has not communicated its objection within the period prescribed by regulation.

(4) Before issuing a warrant under subsection (2), the justice may require that notice of the application be given to any person who has an interest in the application in order to allow that person the opportunity to make representations.

8. Sections 11 to 13 of the Act are replaced by the following:

11. If any fish, marine plant or other thing that is perishable or susceptible to deterioration is seized under section 9, the protection officer or other person having the custody of the thing may dispose of it in any manner that he or she considers appropriate and any proceeds shall be paid to the Receiver General or deposited in a bank to the credit of the Receiver General.

12. (1) Any fishing vessel or goods seized under subsection 9(1) or the proceeds realized from a sale of the vessel or goods under section 11 shall be returned or paid to the person from whom the fishing vessel or goods were seized if the Minister decides not to institute a prosecution in respect of an offence under this Act and, in any event, shall be so returned or paid on the expiry of three months after the day on which the seizure is made unless before that time proceedings in respect of the offence are instituted.

(2) In any event, the return of the fishing vessel or goods or the payment of the proceeds from the sale of the fishing vessel or goods are subject to section 16.7.

(3) A court may, by order, permit the vessel or goods seized under subsection 9(1) or the proceeds realized from a sale of the vessel or goods under section 11 to be detained for any further period that may be specified in the order if the Minister makes a request to that effect before the end of the period of detention in question and if the court is satisfied that it is justified in the circumstances.

12.1 (1) Subject to section 16.7, any fish, marine plant or other thing seized under subsection 9(2) or the proceeds realized from a sale of the fish, marine plant or other thing under section 11 shall be returned or paid to the person from whom the fish, marine plant or other thing was seized on the expiry of three months after the day on which the seizure is made unless before that time an application referred to in subsection 16.01(1) is filed.

(2) A court may, by order, permit the fish, marine plant or other thing seized under subsection 9(2) or the proceeds realized from a sale of the fish, marine plant or other thing under section 11 to be detained for any further period that may be specified in the order if the Minister makes a request to that effect before the end of the period of detention in question and if the court is satisfied that it is justified in the circumstances.

13. If a fishing vessel or goods have been seized under subsection 9(1) and proceedings in respect of an offence under this Act have been instituted, the court or judge may, with the consent of the protection officer who made the seizure, order redelivery of the fishing vessel or goods to the person from whom the fishing vessel or goods were seized on security by bond, with two sureties, in an amount and form satisfactory to the Minister, being given to Her Majesty.

9. Paragraph 14(a) of the Act is replaced by the following:

(a) any fishing vessel seized under subsection 9(1) by means of or in relation to which the offence was committed,

10. Subsection 16(1) of the Act is replaced by the following:

16. (1) If a fishing vessel or goods have been seized under subsection 9(1) and proceedings in respect of an offence under this Act have been instituted, but the fishing vessel or goods or any proceeds realized from a sale of the fishing vessel or goods under section 11 are not ordered to be forfeited at the final conclusion of the proceedings, they shall, subject to subsection (2) and to section 16.7, be returned or the proceeds shall be paid to the person from whom the fishing vessel or goods were seized.

11. The Act is amended by adding the following after section 16:

16.01 (1) A justice, as defined in section 2 of the Criminal Code, on ex parte application by a protection officer, may order the forfeiture to Her Majesty in right of Canada of any fish, marine plant or other thing seized under subsection 9(2) or of the proceeds realized from a sale under section 11 of that fish, marine plant or other thing, if the justice is satisfied by information on oath that

(a) there are reasonable grounds to believe that the fish, marine plant or other thing was obtained by or used in, or will afford evidence in respect of, a contravention of a law related to fisheries of a foreign state, any conservation or management measures of a fisheries management organization or an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement; and

(b) the foreign fishing vessel’s flag state does not object to the forfeiture.

(2) The foreign fishing vessel’s flag state is deemed to not object to the forfeiture if the protection officer has informed the flag state of his or her intention to request the forfeiture and the flag state has not communicated its objection within the period prescribed by regulation.

(3) Before making the order, the justice may require that notice of the application be given to any person who has an interest in the application in order to allow that person the opportunity to make representations.

(4) Once forfeited, the fish, marine plant or other thing shall be disposed of as the Minister directs.

(5) Any fish, marine plant or other thing seized under subsection 9(2) or the proceeds realized from a sale of the fish, marine plant or other thing under section 11 that are not ordered to be forfeited shall, subject to section 16.7, be returned, or the proceeds shall be paid, to the person from whom the fish, marine plant or other thing was seized.

12. The portion of section 16.1 of the Act before paragraph (b) is replaced by the following:

16.1 Any power conferred on a protection officer by or under this Act may be exercised by the officer

(a) subject to section 16.2 and to any regulation made under subparagraph 6(e)(iii), in respect of a fishing vessel of a state party to the Fish Stocks Agreement that is found in an area of the sea designated under subparagraph 6(e)(ii);

13. Section 16.2 of the Act is replaced by the following:

16.2 (1) A protection officer may, in an area of the sea designated under subparagraph 6(e)(ii), for a purpose related to verifying compliance with section 5.3 and any regulations made under subparagraph 6(e)(i), board a fishing vessel of a state party to the Fish Stocks Agreement and exercise the powers referred to in subsection 7.1(3).

(1.1) If the protection officer has reasonable grounds to believe that the fishing vessel has contravened section 5.3, the officer may, with a warrant issued under section 7.6 or without a warrant in exigent circumstances, search the fishing vessel and exercise the power under subsection 9(1) to seize evidence.

(2) If the protection officer has reasonable grounds to believe that the fishing vessel has contravened section 5.3, the officer shall without delay inform the state party to the Fish Stocks Agreement.

(3) In addition to the powers referred to in subsections (1) and (1.1), a protection officer may, with the consent of the state party to the Fish Stocks Agreement, exercise any powers referred to in section 16.1. The officer is deemed to have received the consent of the state if the state has not responded within the period prescribed by regulation or has responded but is not fully investigating the alleged contravention.

16.3 (1) A justice, as defined in section 2 of the Criminal Code, on ex parte application by a protection officer, may order the forfeiture to Her Majesty in right of Canada of any fish or marine plant detained by a protection officer if the justice is satisfied by information on oath that

(a) the detention of the fish or marine plant is consistent with an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;

(b) the forfeiture of the fish or marine plant is consistent with the treaty or arrangement; and

(c) the foreign fishing vessel’s flag state has not provided the Minister, within the time period required by the treaty or arrangement, with the information required by the treaty or the arrangement to prevent the forfeiture.

(2) Before making the order, the justice may require that notice of the application be given to any person who has an interest in the application in order to allow that person the opportunity to make representations.

(3) Once forfeited, the fish or marine plant shall be disposed of as directed by the Minister.

INFORMATION

16.4 The Minister may disclose to a foreign fishing vessel’s flag state, to the state of nationality of the foreign fishing vessel’s master or to a coastal state, fisheries management organization, organization of states or international organization information that relates to any of the following:

(a) a refusal to authorize the foreign fishing vessel to enter Canadian fisheries waters;

(b) a suspension, amendment or cancellation of an authorization granted to the foreign fishing vessel;

(c) a change to a decision referred to in paragraph (a) or (b);

(d) the outcome of any proceeding relating to a decision referred to in any of paragraphs (a) to (c);

(e) an inspection report in respect of the foreign fishing vessel;

(f) an enforcement action taken by a protection officer in respect of the foreign fishing vessel.

16.5 The Minister may disclose to a party to the Port State Measures Agreement, coastal state, fisheries management organization or international organization information relating to any measure that is taken under the Fisheries Act in respect of a Canadian fishing vessel in response to a measure that is taken, in respect of that vessel, by another state under the Port State Measures Agreement .

16.6 For a purpose related to verifying compliance with this Act, the Minister may disclose to the Canada Border Services Agency information relating to the importation of any fish or marine plant.

16.7 (1) A justice, as defined in section 2 of the Criminal Code, on ex parte application by a protection officer, may order that anything seized under this Act be sent to a foreign state if the justice is satisfied by information on oath that the foreign state has requested that the thing be sent to it for the purpose of administering or enforcing its laws.

(2) The justice may include in the order any terms and conditions that he or she considers appropriate, including those that are necessary to give effect to the request and those that relate to the preservation and return to Canada of the thing or the protection of the interests of third parties.

(3) The justice may require that the thing be brought before him or her.

(4) Before making the order, the justice may require that notice of the application be given to any person who has an interest in the application in order to allow that person the opportunity to make representations.

14. Paragraph 17(2)(a) of the Act is replaced by the following:

(a) a state party to the Fish Stocks Agreement if the vessel or official, as the case may be, is acting in the performance of their duties in relation to the Fish Stocks Agreement; or

15. (1) Subsection 18.01(1) of the Act is replaced by the following:

18.01 (1) In a prosecution of a fishing vessel of a state party to the Fish Stocks Agreement or a state that is party to a treaty or arrangement described in paragraph 6(f) or of a fishing vessel without nationality for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or has been prosecuted for the offence.

(2) Subsection 18.01(2) of the English version of the Act is replaced by the following:

(2) A fishing vessel on which a summons is served shall appear by counsel or agent.

16. Section 18.02 of the Act is replaced by the following:

18.02 If a fishing vessel of a state party to the Fish Stocks Agreement or a state that is party to a treaty or arrangement described in paragraph 6(f) or a fishing vessel without nationality is convicted of an offence under this Act, the amount of the fine imposed on the vessel is a debt due to Her Majesty in right of Canada owed by the person who, at the time the offence was committed, was lawfully entitled to possession of the vessel, whether as owner or as charterer.

18.03 (1) Every person who contravenes subsection 5.6(1) or (2) is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $500,000; or

(b) on summary conviction, to a fine of not more than $100,000.

(2) If a person is convicted of an offence under subsection (1) a subsequent time, the amount of the fine for the subsequent offence may be up to double the amount set out in that subsection.

18.04 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, order the person to pay an additional fine in an amount equal to the court’s estimation of those benefits.

17. Paragraph 18.1(a.1) of the Act is replaced by the following:

(a.1) in an area of the sea designated under subparagraph 6(e)(ii) on board or by means of a fishing vessel of a state party to the Fish Stocks Agreement or of a fishing vessel without nationality;

18. (1) The portion of subsection 18.2(1) of the French version of the Act before paragraph (a) is replaced by the following:

(2) Subsection 18.2(2) of the French version of the Act is replaced by the following:

COMING INTO FORCE

19. This Act comes into force on a day to be fixed by order of the Governor in Council.