Contents
- Her Majesty, by and with the advice and consent of the Sen…
- Short Title
- Interpretation
- Application
- Regulations
- Security Measures
- Security Rules
- Exemptions
- Confidentiality of Security Measures and Security Rules
- Directions to Vessels
- Notices to Operators
- Screening
- Enforcement
- General Provisions Relating to Offences
- Administrative Penalties
- Amendments not in force
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
1Short title#
This Act may be cited as the Marine Transportation Security Act.
Interpretation
2Definitions#
(1)In this Act,
Canadian ship means a vessel registered under the Canada Shipping Act, 2001 or registered in Canada before August 1, 1936 under the Merchant Shipping Act, 1894 of the Parliament of the United Kingdom, 57-58 Victoria, chapter 60, and all Acts adding to or amending that Act; (navire canadien)
marine facility includes
(a)an area of land, water, ice or other supporting surface used, designed, prepared, equipped or set apart for use, either in whole or in part, for the arrival, departure, movement or servicing of vessels,
(c)equipment and facilities used to provide services relating to marine transportation, and
(d)marine installations and structures, as defined in section 2 of the Canadian Laws Offshore Application Act; (installation maritime)
operator means
(a)when used in respect of a vessel,
(i)the actual owner of the vessel, if it is not registered, or the registered owner, if it is registered,
(ii)a person having a beneficial interest in the vessel, including an interest arising under contract and any other equitable interest, other than an interest by way of a mortgage,
(iii)a lessee or charterer of the vessel who is responsible for its navigation, or
(iv)a master or other person who has command or charge of the vessel, other than a pilot, and
(b)when used in respect of a marine facility, a person who has the charge, management and control of the facility, whether on that person’s own account or as an agent of another person; (exploitant)
proposed security rule means a rule submitted for the approval of the Minister under section 10; (règle de sûreté proposée)
restricted area means an area established under any regulation, security measure or security rule to which access is restricted to authorized persons; (zone réglementée)
screening officer means a person designated by the Minister under section 19.1 as a screening officer for the purposes of this Act; (agent de contrôle)
security inspector means a person designated by the Minister under section 22 as a security inspector for the purposes of this Act; (inspecteur)
security measure means a measure formulated by the Minister under section 7; (mesure de sûreté)
security rule means a rule approved by the Minister under section 10; (règle de sûreté)
Tribunal means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act; (Tribunal)
vessel includes a dredge, floating elevator, floating home, floating oil rig, seaplane, raft, log or lumber boom, air cushion vehicle and any type of ship, boat or craft used or capable of being used for marine navigation, regardless of how it is propelled. (bâtiment)
(2)Where a provision of this Act authorizes or requires the Minister to do anything, the Minister may authorize it to be done by a person appointed to serve in the Department of Transport in an appropriate capacity and references to the Minister in the provision shall be interpreted as including that person.
Application
4Application to vessels and marine facilities#
(1)Subject to subsections (2) and (3), this Act applies in respect of
(a)vessels and marine facilities in Canada;
(b)Canadian ships outside Canada; and
(c)marine installations and structures, as provided in sections 5 and 6 of the Canadian Laws Offshore Application Act.
(2)This Act does not apply so as to require or authorize any person outside Canada to contravene the law of a foreign country or any Canadian ship outside Canada to be operated in contravention of that law.
Regulations
5Regulations respecting security#
(1)The Governor in Council may make regulations respecting the security of marine transportation, including regulations
(a)for preventing unlawful interference with marine transportation and ensuring that appropriate action is taken where that interference occurs or could occur;
(b)requiring or authorizing screening for the purpose of protecting persons, goods, vessels and marine facilities;
(c)respecting the establishment of restricted areas;
(d)respecting the keeping and preservation of records and documents relating to the security of marine operations, including copies of the regulations, security measures and security rules;
(e)for requiring the records and documents to be filed with the Minister or provided on request; and
(f)respecting the protection, preservation and return of any evidence that has been seized under this Act without a warrant or any vessel that has been detained under this Act.
(2)Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction and liable
(a)in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both; or
(b)in the case of a corporation, to a fine not exceeding $100,000.
note
6Notices and service of documents#
The Governor in Council may make regulations respecting
(a)the form and manner of giving notice under this Act; and
(b)the service of documents required or authorized to be served under this Act, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served.
note
Security Measures
7Minister may formulate security measures#
(1)The Minister may formulate measures respecting the security of marine transportation, including measures containing provisions that may be included in the regulations.
(2)The Minister may, by notice in writing, require or authorize the operator of a vessel or marine facility to carry out the security measures, and the measures may apply instead of or in addition to any provision of the regulations.
8Minister may carry out security measures#
(1)The Minister may carry out security measures on any vessel or at any marine facility where the Minister considers that the security of persons or goods is not adequately protected or is not protected in accordance with this Act, the regulations and any applicable security measures and security rules.
(2)The operators of the vessel or marine facility are jointly and severally liable to Her Majesty in right of Canada for the costs incurred by the Minister in carrying out the security measures.
9Offences relating to security measures#
Every operator who does not carry out security measures that the operator is required to carry out, and every person who wilfully obstructs a person who is carrying out security measures, is guilty of an offence and liable
(a)on conviction on indictment
(i)in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or
(ii)in the case of a corporation, to a fine not exceeding $200,000; or
(b)on summary conviction
(i)in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or
(ii)in the case of a corporation, to a fine not exceeding $100,000.
Security Rules
10Purpose of section#
(1)The purpose of this section is to allow operators of vessels and marine facilities to formulate and operate under security rules as an alternative to security measures required or authorized by the Minister, but this section does not limit the authority of the Minister to require or authorize security measures.
(3)The Minister may, by notice in writing, request the operator of a vessel or marine facility
(a)to formulate rules respecting any matter specified in the notice relating to the security of the vessel or facility; and
(b)to submit the rules to the Minister within any period specified in the notice.
(5)When submitting the rules, the operator shall also submit a statement identifying the persons consulted and describing any disagreement they may have expressed about the rules.
(6)Within one hundred and twenty days after the rules have been submitted, the Minister shall decide whether to approve them and shall notify the operator of the decision in writing and, if the Minister approves the rules,
(b)the operator shall notify the persons who were consulted that the rules have been approved; and
(c)the operator shall carry out the rules and any conditions of their approval until the approval is revoked.
(8)Amendments to security rules may be submitted and approved in the same way as are the security rules they amend and, when approved, have the same effect.
11Offences relating to security rules#
Every operator who does not carry out security rules and conditions approved by the Minister in relation to the operator, and every person who wilfully obstructs a person who is carrying out security rules, is guilty of an offence and liable
(a)on conviction on indictment
(i)in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or
(ii)in the case of a corporation, to a fine not exceeding $200,000; or
(b)on summary conviction
(i)in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or
(ii)in the case of a corporation, to a fine not exceeding $100,000.
Exemptions
12Exemption by Minister#
The Minister may, on any terms and conditions the Minister considers necessary, exempt any person, vessel or marine facility from the application of any regulation, security measure or security rule if, in the opinion of the Minister, the exemption is in the public interest and is not likely to affect marine security.
Confidentiality of Security Measures and Security Rules
13Prohibition against disclosure#
(1)No person shall disclose to any other person the substance of a security measure, security rule or proposed security rule unless the disclosure is
(a)authorized by the Minister;
(b)ordered by a court or other body under section 14;
(c)required by any law; or
(d)necessary to give effect to the measure or rule.
(2)Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction and liable
(a)in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both; or
(b)in the case of a corporation, to a fine not exceeding $100,000.
14Court to inform Minister#
(1)Where a request is made for the production or discovery of a security measure, security rule or proposed security rule in any proceeding before a court or other body having jurisdiction to compel its production or discovery, the court or other body shall
(b)examine the measure or rule in a hearing closed to the public and give the Minister a reasonable opportunity to make representations with respect to it.
(2)If the court or other body concludes that the public interest in the proper administration of justice outweighs the interests that would be protected by non-disclosure, the court or other body
(a)shall order the production and discovery of the measure or rule, subject to any restrictions or conditions that the court or other body considers appropriate; and
(b)may require any person to give evidence relating to the measure or rule.
15Security measures and security rules not statutory instruments#
Security measures and security rules are not statutory instruments for the purposes of the Statutory Instruments Act.
Directions to Vessels
16Security threats#
(1)Where the Minister has reasonable grounds to believe that a vessel is a threat to the security of any person or thing, including any goods, vessel or marine facility, the Minister may direct the vessel
(b)to proceed out of Canada in accordance with any instructions the Minister may give regarding the route and manner of proceeding; or
(c)to remain outside Canada.
(2)The Minister may direct that a vessel registered outside Canada remain outside Canada, proceed out of Canada or not enter or dock at a marine facility if the Minister has reasonable grounds to believe that the vessel or any persons or goods on board it have not been subjected to screening or other measures equivalent to the authorized screening or other measures that would apply under this Act if the vessel were registered in Canada.
(3)For greater certainty, a direction issued under this section is not a statutory instrument for the purposes of the Statutory Instruments Act, but no operator shall be found to have contravened the direction unless it is proved that, at the date of the alleged contravention, reasonable steps had been taken to bring the substance of the direction to the attention of the operator.
17Offences relating to directions#
(a)on conviction on indictment
(i)in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or
(ii)in the case of a corporation, to a fine not exceeding $200,000; or
(b)on summary conviction
(i)in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or
(ii)in the case of a corporation, to a fine not exceeding $100,000.
Notices to Operators
18Effect of giving notice#
A notice given to an operator of a vessel or marine facility or to an agent of the operator is effective with respect to that operator and any other operator of the vessel or marine facility.
Screening
19Definition of designation#
For the purposes of sections 19.1 to 19.8, designation includes any privilege accorded by a designation.note
19.1Designation of screening officers#
The Minister may designate persons or classes of persons to act as screening officers for the purposes of this Act or any of its provisions.note
19.2Refusal to designate, etc.#
(1)The Minister may refuse to designate a person as a screening officer under section 19.1, or may suspend, cancel or refuse to renew the designation of a person as a screening officer, if the Minister is of the opinion that the person is incompetent, does not meet the qualifications or fulfil the conditions required for the designation or ceases to meet the qualifications or fulfil the conditions of the designation.
(2)The Minister may suspend or cancel the designation of a person as a screening officer if the Minister is of the opinion that the person has contravened this Act or any regulation, security measure or security rule, or any condition referred to in subsection 10(6).
(3)The Minister may suspend the designation of a person as a screening officer if the Minister is of the opinion that the exercise by the person of the functions of a screening officer constitutes, or is likely to constitute, an immediate threat to marine transportation security.
19.3Notice#
(1)If the Minister decides to refuse to designate a person as a screening officer or decides to suspend, cancel or refuse to renew a person’s designation as a screening officer, the Minister shall notify the person of that decision.
(2)A notice under subsection (1) shall include
(a)the grounds for the Minister’s decision; and
(b)the address at which, and the date, being thirty days after the notice is given, on or before which, the person may file a request for a review of the decision.
(3)In the case of a suspension or cancellation, the effective date of the decision shall not be earlier than
(a)in the case of a decision made under subsection 19.2(1) or (3), the day that the notice was received by the person; and
(b)in the case of a decision made under subsection 19.2(2), the thirtieth day after the notice is given.
note
19.4Request for review#
(2)A request under subsection (1) for a review of a decision of the Minister does not operate as a stay of the decision.
(3)On application in writing by the person affected by a decision made under subsection 19.2(2), after giving any notice to the Minister that is, in the member’s opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, unless he or she is of the opinion that granting a stay would constitute a threat to marine transportation security.
note
19.5Time and place for review#
(3)In a review of a decision made under subsection 19.2(2), the person who filed the request for the review is not required, and shall not be compelled, to give any evidence or testimony in the matter.
(4)The member may
(a)in the case of a decision made under subsection 19.2(1) or (3), confirm the decision or refer the matter back to the Minister for reconsideration; or
(b)in the case of a decision made under subsection 19.2(2), confirm the decision or substitute his or her own determination.
note
19.6Right of appeal#
(1)Within thirty days after the determination,
(a)a person affected by the determination may appeal a determination made under paragraph 19.5(4)(a) to the Tribunal; or
(2)A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
(3)The appeal panel of the Tribunal assigned to hear the appeal may
(a)in the case of a determination made under paragraph 19.5(4)(a), dismiss the appeal or refer the matter back to the Minister for reconsideration; or
(b)in the case of a determination made under paragraph 19.5(4)(b), dismiss the appeal, or allow the appeal and substitute its own decision.
note
19.7Decision to remain in effect pending reconsideration#
If a matter is referred back to the Minister for reconsideration under paragraph 19.5(4)(a) or 19.6(3)(a), the decision of the Minister under subsection 19.2(1) or (3) to suspend or cancel a designation remains in effect until the reconsideration is concluded. However, the member who made the determination or the appeal panel, after considering any representations made by the parties, may grant a stay of a decision under subsection 19.2(1) to suspend or cancel a designation until the reconsideration is concluded, if the member or panel is satisfied that granting a stay would not constitute a threat to marine transportation security.note
19.8Reconsideration#
(1)In the case of a decision made under subsection 19.2(3), if the appeal panel has, on an appeal under section 19.6, dismissed the appeal or if the Minister has, after reconsidering the matter pursuant to paragraph 19.5(4)(a) or 19.6(3)(a), confirmed the suspension, the person affected by the decision may, in writing, request the Minister to reconsider whether the exercise by the person of the functions of a screening officer continues to constitute, or is likely to continue to constitute, an immediate threat to marine transportation security.
(2)On the receipt of a request by a person under subsection (1), the Minister shall without delay conduct the reconsideration and inform the person of his or her decision regarding the request. Sections 19.3 to 19.7 apply in respect of that decision with any modifications that are necessary.
note
20Screening before boarding#
(1)A screening officer may require a person or any goods to undergo authorized screening before the person or goods come on board a vessel or enter a restricted area and, where so required,
(a)the person shall not board the vessel or enter the restricted area unless the person has undergone the authorized screening; and
(b)no person shall bring the goods on board the vessel or into the restricted area unless the goods have undergone the authorized screening.
(2)A screening officer may require a person on board a vessel or in a restricted area to undergo authorized screening and, if the person refuses,
(a)the officer may order the person to leave the vessel or restricted area and to remove from it any goods that the person took or had placed there; and
(b)the person shall leave the vessel or restricted area and remove or permit the removal of the goods immediately or, in the case of a vessel that is not docked, at the first reasonable opportunity.
(3)A screening officer may carry out authorized screening of any goods that are received at a marine facility for transport on a vessel and are not accompanied by a person who may give permission for the screening and the officer may use any force that is reasonably necessary to gain access to the goods.
(4)Every person who knowingly makes any false or misleading statement to a screening officer, or knowingly provides false or misleading information to a screening officer, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both.
(5)Every person who contravenes subsection (2) or who wilfully circumvents authorized screening in any manner is guilty of an offence and liable
(a)on conviction on indictment, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both; or
(b)on summary conviction, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both.
21Operators to post notices#
(1)When authorized screening is required or authorized on a vessel or at a marine facility, the operator of the vessel or facility shall post notices stating that
(a)authorized screening is being carried out;
(b)no person is obliged to undergo authorized screening of their person if they choose not to board a vessel or enter a restricted area; and
(c)no person is obliged to permit authorized screening of their goods if they choose not to have the goods placed on board the vessel or in the restricted area.
(2)The notices must be posted in prominent places where authorized screening is carried out and they must be written in both of the official languages of Canada and may, in addition, be written in any other language.
(3)Every person who contravenes this section is guilty of an offence punishable on summary conviction and liable
(a)in the case of an individual, to a fine not exceeding $1,000; or
(b)in the case of a corporation, to a fine not exceeding $10,000.
Enforcement
22Designation of security inspectors#
(2)The Minister shall furnish every security inspector with a certificate of designation as a security inspector and, on entering any place or inspecting anything, a security inspector shall show the certificate to the person apparently in charge of the place or thing if the person requests proof of the security inspector’s designation.
23Inspection of vessels and marine facilities#
(1)For the purpose of ensuring compliance with this Act and any regulation, security measure or security rule, a security inspector may at any reasonable time, but subject to subsection (3), board and inspect any vessel or enter and inspect any marine facility if the inspector is designated to inspect the vessel or facility.
(2)When conducting the inspection, the security inspector may
(a)require the attendance of and question any person who the inspector considers will be able to assist in the inspection;
(b)require any person to produce for inspection and copying any document that the inspector believes, on reasonable grounds, contains any information relevant to the administration of this Act or the regulation, security measure or security rule;
(c)seize anything found in the course of the inspection that the inspector believes, on reasonable grounds, will afford evidence with respect to an offence under this Act; and
(d)detain any vessel that the inspector believes, on reasonable grounds, is a threat to the security of any person, goods, vessel or marine facility, until the inspector is satisfied that the vessel is no longer such a threat.
(3)A security inspector may not enter a dwelling-place except under the authority of a warrant or with the consent of the occupant or person apparently in charge of it.
(4)Where on ex parte application a justice, as defined in section 2 of the Criminal Code, is satisfied by information on oath that
(a)the conditions for entry described in subsection (1) exist in relation to a dwelling-place,
(b)entry is necessary for any purpose relating to the administration or enforcement of this Act, and
(c)entry has been refused or there are reasonable grounds for believing that entry will be refused,
the justice may at any time sign and issue a warrant authorizing the security inspector named in the warrant to enter the dwelling-place subject to any conditions that may be specified in the warrant.
(5)The security inspector who executes the warrant shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
24Search and seizure#
For greater certainty, sections 487 to 492 of the Criminal Code apply in relation to this Act, but a security inspector may exercise the powers of search and seizure provided in section 487 without a warrant if the conditions for obtaining a warrant exist but the circumstances are such that the delay necessary to obtain a warrant would result in danger to human life or safety.
25Assistance to inspectors#
(1)The operator of any vessel or marine facility boarded or entered by a security inspector who is carrying out functions under this Act, and every person found there, shall give the inspector all reasonable assistance in that person’s power to enable the inspector to carry out those functions.
(2)When a security inspector is carrying out functions under this Act, no person shall fail to comply with any reasonable request of the inspector or otherwise wilfully obstruct the inspector.
(3)No person shall
(a)knowingly make any false or misleading statement or knowingly provide false or misleading information to a security inspector or other person carrying out functions under this Act;
(b)wilfully destroy any record or document required to be kept under this Act;
(c)make a false entry in a record required to be kept under this Act with intent to mislead, or wilfully omit to make any entry in such a record;
(d)remove, alter or interfere in any way with anything seized by a security inspector, except with the inspector’s permission; or
(e)wilfully operate a vessel that has been detained under this Act, unless authorized to do so under this Act.
(4)Every person who contravenes this section is guilty of an offence and liable
(a)on conviction on indictment
(i)in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or
(ii)in the case of a corporation, to a fine not exceeding $200,000; or
(b)on summary conviction
(i)in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or
(ii)in the case of a corporation, to a fine not exceeding $100,000.
General Provisions Relating to Offences
26Continuing offence#
Where an offence is committed or continued on more than one day, the person who committed it is liable to be convicted of a separate offence for each day on which the offence is committed or continued.
27Limitation period for summary conviction offences#
Proceedings by way of summary conviction may be instituted at any time within, but not later than, two years after the day on which the subject-matter of the proceedings arose.
28Offence by employee or agent#
(1)A person is liable to be convicted of an offence committed by their employee or agent, whether or not the employee or agent has been identified, prosecuted or convicted.
(2)The operator of a vessel is liable to be convicted of an offence committed in relation to the vessel by another person, whether or not the other person has been identified, prosecuted or convicted, but no person shall be convicted under this subsection if it is established that, without the operator’s consent, the vessel was in the possession of another person at the time of the offence.
(3)The operator of a marine facility is liable to be convicted of an offence committed with their consent by another person in relation to the facility, whether or not the other person has been identified, prosecuted or convicted.
(4)An officer, director or agent of a corporation that commits an offence under this Act is liable to be convicted of the offence if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation has been prosecuted or convicted.
note
29Defence#
For greater certainty, no person is liable to be convicted of an offence if the person exercised all due diligence to prevent its commission.
30Things seized or detained#
Where a proceeding is commenced in respect of an offence involving anything seized or detained under this Act and it is detained until the final conclusion of the proceeding, it must be returned to its lawful owner or to the person lawfully entitled to its possession, unless that person has been convicted of an offence under this Act, in which case it may be detained until any fine imposed on conviction has been paid, or it may be sold in satisfaction of the fine or any part of it.
31Recovery of fines#
(1)Where a fine imposed on a person convicted of an offence is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same effect as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person for a debt in the amount of the fine.
(2)All reasonable costs involved in registering the conviction are recoverable in the same way as if they were part of the fine.
Administrative Penalties
Interpretation
Assurances of Compliance and Notices of Violation
33If reasonable grounds to believe a violation#
(1)If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may
(a)enter into an assurance of compliance with the person that
(i)identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,
(ii)sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and
(iii)sets out the penalty, fixed by or within the range fixed by the regulations, that the person would have been liable to pay for the violation if the assurance had not been entered into; or
(b)issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out
(i)the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation,
(ii)the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and
(iii)particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.
(3)The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.
note
34Deemed violation#
(1)A person who enters into an assurance of compliance under paragraph 33(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.
(2)A person who enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.
note
35When assurance of compliance complied with#
If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice,
(a)no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and
(b)any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.
note
36When assurance of compliance not complied with#
(1)If the Minister is of the opinion that a person who has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,
(a)the person is liable to pay double the amount of the penalty set out in the assurance; or
(b)the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.
(2)A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.
(3)On the service of a notice of default, the person served has no right of set-off against any amount spent by the person under the assurance of compliance.
note
37Request for review#
(1)A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.
(4)The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.
(5)A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.
(6)The member may confirm the Minister’s decision or determine that the person has complied with the assurance of compliance.
note
38Return of security#
Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if
(a)the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or
(b)a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.
note
39Notice of violation#
(1)A person served with a notice of violation under paragraph 33(1)(b) must
(a)pay the amount of the penalty; or
(2)If a review of the facts of the violation is not requested, the person is deemed to have committed the violation in respect of which the notice was served.
(5)The burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.
(6)The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 51(c), substitute his or her own determination.
note
40Right of appeal#
(2)A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
(3)The appeal panel of the Tribunal assigned to hear the appeal may
(a)in the case of a determination made under subsection 37(6), dismiss the appeal or allow the appeal and substitute its own decision; or
(b)in the case of a determination made under subsection 39(6), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 51(c), substitute its own decision.
note
Choice of Proceedings
41How contravention may be proceeded with#
If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.note
Recovery of Debts
42Debts due to Her Majesty#
The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:
(a)unless a review of the amount of a penalty is requested under subsection 39(1), the amount of the penalty, from the time the notice of violation that sets out the penalty is served;
(b)the amount of a penalty set out in a notice of default referred to in subsection 36(1), from the time the notice under that subsection is served;
(c)the amount of a penalty determined by a member under section 39, or decided by an appeal panel under section 40, from the time of the respective determination or decision; and
(d)the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).
note
43Certificate#
(2)On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant on its registration.
note
Rules of Law about Violations
44Violations are not offences#
For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.note
45Defence#
For greater certainty, no person is liable for the commission of a violation if the person exercised all due diligence to prevent the commission.note
46Violation by employee or agent#
(1)A person is liable for a violation committed by their employee or agent, whether or not the employee or agent has been identified or proceeded against under sections 33 to 43.
(2)The operator of a vessel is liable for a violation committed in relation to the vessel by another person, whether or not the other person has been identified or proceeded against under sections 33 to 43 unless, at the time of the violation, the vessel was in the possession of another person without the operator’s consent.
(3)The operator of a marine facility is liable for a violation committed with their consent by another person in relation to the facility, whether or not the other person has been identified or proceeded against under sections 33 to 43.
(4)An officer, director or agent of a corporation that commits a violation under this Act is a party to and liable for the violation if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation has been identified or proceeded against under sections 33 to 43.
note
General Provisions
47Notations removed#
(1)Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the last day on which any of the following events occurs, the Minister is to remove every notation of violation or default, and every suspension or cancellation of the designation of or refusal to designate or to renew the designation of a person as a screening officer on prescribed grounds, from any records that the Minister may keep respecting the person:
(b)the suspension or cancellation of the designation of, or the refusal to designate or to renew the designation of, the person as a screening officer under section 19.2.
(3)A notice under subsection (2) shall provide all relevant information concerning the grounds on which the Minister has refused to remove the notation and shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.
(4)Subsections 37(1) to (3) apply in respect of a refusal to remove a notation, with any modifications that the circumstances require.
(6)The person may, within thirty days after a determination is made under subsection (5), appeal the determination to the Tribunal.
(7)If the person does not appear at the review hearing, the person is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.
note
49Limitation period#
No notice of violation may be issued more than two years after the Minister becomes aware of the violation.note
50Certificate of Minister#
A document that purports to have been issued by the Minister and certifies the day on which the Minister became aware of a violation is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the violation on that day.note
Regulations
51Regulations#
The Governor in Council may make regulations
(a)designating, as a violation that may be proceeded with in accordance with sections 33 to 46, 49 and 50, the contravention of a provision that is an offence under this Act;
(b)designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued;
(c)designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine that would be payable if the violation were proceeded with by way of summary conviction; and
(d)prescribing anything that by subsections 33 to 50 is to be prescribed.
note
Amendments not in force
— 2012, c. 17, s. 70The portion of subsection 5(2) of the Marine Transportation Security Act before paragraph (a) is replaced by the following:Every person who contravenes a regulation made under subsection (1), other than a provision that sets out an obligation described in subsection (3), is guilty of an offence punishable on summary conviction and liableSection 5 of the Act is amended by adding the following after subsection (2):Every individual who contravenes, in a regulation made under subsection (1), a provision that sets out an obligation to provide information required to be reported before a vessel enters Canadian waters, is guilty of an offence and liableon conviction on indictment, to a fine of not more than $75,000 or to imprisonment for a term of not more than one year or to both; oron summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months or to both. — 2012, c. 17, s. 71The Act is amended by adding the following after section 5:The Governor in Council may make regulations respecting the disclosure by the Minister to departments or agencies of the Government of Canada or members or agents of such departments or agencies, for the purpose of protecting the safety or security of Canada or Canadians, of information collected for the purposes of this Act in respect of any vessel referred to in subsection (2).The vessels in respect of which the information may be disclosed are those that, in the Minister’s opinion, may pose a threat to the safety or security of Canada or Canadians. — 2012, c. 17, s. 72Section 17 of the Act is replaced by the following:An operator of a vessel that contravenes a direction is guilty of an offence and liableon conviction on indictmentin the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and, for any subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than two years or to both, orin the case of a corporation, for a first offence, to a fine of not more than $500,000 and, for any subsequent offence, to a fine of not more than $1,000,000; oron summary convictionin the case of an individual, for a first offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months or to both, and, for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, orin the case of a corporation, for a first offence, to a fine of not more than $250,000 and, for any subsequent offence, to a fine of not more than $500,000.A vessel that contravenes a direction is guilty of an offence and liable on summary conviction, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $200,000. — 2012, c. 17, s. 73The portion of subsection 25(4) of the Act before paragraph (a) is replaced by the following:Every person who contravenes subsection (1) or (2) or any of paragraphs (3)(b) to (e) is guilty of an offence and liableSection 25 of the Act is amended by adding the following after subsection (4):Every person who contravenes paragraph (3)(a) is guilty of an offence and liableon conviction on indictmentin the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and, for any subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than two years or to both, orin the case of a corporation, for a first offence, to a fine of not more than $500,000 and, for any subsequent offence, to a fine of not more than $1,000,000; oron summary convictionin the case of an individual, for a first offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months or to both, and, for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, orin the case of a corporation, for a first offence, to a fine of not more than $250,000 and, for any subsequent offence, to a fine of not more than $500,000. — 2012, c. 17, s. 74Section 26 of the English version of the Act is replaced by the following:If an offence is committed or continued on more than one day, the person or vessel that committed it is liable to be convicted of a separate offence for each day on which the offence is committed or continued. — 2012, c. 17, s. 75Section 28 of the Act is amended by adding the following after subsection (4):In a prosecution of a vessel for an offence under subsection 17(2), evidence that a direction was given to the master or to any person on board who is, or appears to be, in command or charge of the vessel, other than the pilot, is, in the absence of evidence to the contrary, proof that it was given to the vessel.In a prosecution of a vessel for an offence under subsection 17(2), the vessel is liable to be convicted of the offence if it is established that the offence was committed by the operator or by any person on board, other than a security inspector, whether or not the person on board has been identified, prosecuted or convicted. — 2012, c. 17, s. 76Section 29 of the Act is replaced by the following:A person shall not be convicted of an offence under this Act if they establish that they exercised all due diligence to prevent its commission, and a vessel shall not be convicted of an offence under subsection 17(2) if the person who committed the act or omission that constitutes the offence establishes that they exercised all due diligence to prevent its commission. — 2012, c. 17, s. 77Subsection 31(1) of the Act is replaced by the following:If a fine imposed on a person or vessel convicted of an offence under this Act is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same force and effect, and all proceedings may be taken on it, as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person or vessel for a debt in the amount of the fine.
Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.