Contents
WHEREAS Canada recognizes that the three oceans, the Arctic, the Pacific and the Atlantic, are the common heritage of all Canadians;WHEREAS Parliament wishes to reaffirm Canada’s role as a world leader in oceans and marine resource management;WHEREAS Parliament wishes to affirm in Canadian domestic law Canada’s sovereign rights, jurisdiction and responsibilities in the exclusive economic zone of Canada;WHEREAS Canada promotes the understanding of oceans, ocean processes, marine resources and marine ecosystems to foster the sustainable development of the oceans and their resources;WHEREAS Canada holds that conservation, based on an ecosystem approach, is of fundamental importance to maintaining biological diversity and productivity in the marine environment;WHEREAS Canada promotes the wide application of the precautionary approach to the conservation, management and exploitation of marine resources in order to protect these resources and preserve the marine environment;WHEREAS Canada recognizes that the oceans and their resources offer significant opportunities for economic diversification and the generation of wealth for the benefit of all Canadians, and in particular for coastal communities;WHEREAS Canada promotes the integrated management of oceans and marine resources;AND WHEREAS the Minister of Fisheries and Oceans, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, is encouraging the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems;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
1Short title#
This Act may be cited as the Oceans Act.
Definitions
2Definitions#
In this Act,
artificial island means any man-made extension of the seabed or a seabed feature, whether or not the extension breaks the surface of the superjacent waters; (île artificielle)
Department means the Department of Fisheries and Oceans; (ministère)
federal laws includes Acts of Parliament, regulations as defined in subsection 2(1) of the Interpretation Act and any other rules of law within the jurisdiction of Parliament, but does not include laws of the Legislature of Yukon, of the Northwest Territories or for Nunavut; (droit)
law, in respect of a province, includes a law or rule of law from time to time in force in the province, other than federal laws, and the provisions of any instrument having effect under any such law; (droit)
marine installation or structure includes
(a)any ship and any anchor, anchor cable or rig pad used in connection therewith,
(b)any offshore drilling unit, production platform, subsea installation, pumping station, living accommodation, storage structure, loading or landing platform, dredge, floating crane, pipelaying or other barge or pipeline and any anchor, anchor cable or rig pad used in connection therewith, and
(c)any other work or work within a class of works prescribed pursuant to paragraph 26(1)(a); (ouvrages en mer)
ship includes any description of vessel, boat or craft designed, used or capable of being used solely or partly for marine navigation without regard to method or lack of propulsion. (navire)
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Her Majesty
Part I · Canada’s Maritime Zones
Territorial Sea and Contiguous Zone
4Territorial sea of Canada#
The territorial sea of Canada consists of a belt of sea that has as its inner limit the baselines described in section 5 and as its outer limit
(a)subject to paragraph (b), the line every point of which is at a distance of 12 nautical miles from the nearest point of the baselines; or
(b)in respect of the portions of the territorial sea of Canada for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(ii), lines determined from the geographical coordinates of points so prescribed.
5Determination of the baselines#
(1)Subject to subsections (2) and (3), the baseline is the low-water line along the coast or on a low-tide elevation that is situated wholly or partly at a distance not exceeding the breadth of the territorial sea of Canada from the mainland or an island.
(2)In respect of any area for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(i) and subject to any exceptions in the regulations for
(a)the use of the low-water line along the coast between given points, and
(b)the use of the low-water lines of low-tide elevations that are situated wholly or partly at a distance not exceeding the breadth of the territorial sea of Canada from the mainland or an island,
the baselines are straight lines interpreted as geodesics joining the consecutive geographical coordinates of points so prescribed.
(3)In respect of any area not referred to in subsection (2), the baselines are the outer limits of any area, other than the territorial sea of Canada, over which Canada has a historic or other title of sovereignty.
(4)For the purposes of this section, a low-tide elevation is a naturally formed area of land that is surrounded by and above water at low tide but submerged at high tide.
6Internal waters of Canada#
The internal waters of Canada consist of the waters on the landward side of the baselines of the territorial sea of Canada.
7Part of Canada#
For greater certainty, the internal waters of Canada and the territorial sea of Canada form part of Canada.
8Rights of Her Majesty#
(1)For greater certainty, in any area of the sea not within a province, the seabed and subsoil below the internal waters of Canada and the territorial sea of Canada are vested in Her Majesty in right of Canada.
(2)Nothing in this section abrogates or derogates from any legal right or interest held before February 4, 1991.
9Application of provincial law#
(1)Subject to this section and to any other Act of Parliament, the laws of a province apply in any area of the sea
(a)that forms part of the internal waters of Canada or the territorial sea of Canada;
(b)that is not within any province; and
(c)that is prescribed by the regulations.
(2)Subject to any regulations made pursuant to paragraph 26(1)(d), subsection (1) does not apply in respect of any provision of a law of a province that
(a)imposes a tax or royalty; or
(b)relates to mineral or other non-living natural resources.
(3)For the purposes of this section, the laws of a province shall be applied as if the area of the sea in which those laws apply under this section were within the territory of that province.
(4)Any sum due under a law of a province that applies in an area of the sea under this section belongs to Her Majesty in right of the province.
(5)For greater certainty, this section shall not be interpreted as providing a basis for any claim, by or on behalf of a province, in respect of any interest in or legislative jurisdiction over any area of the sea in which a law of a province applies under this section or the living or non-living resources of that area, or as limiting the application of any federal laws.
10Contiguous zone of Canada#
The contiguous zone of Canada consists of an area of the sea that has as its inner limit the outer limit of the territorial sea of Canada and as its outer limit the line every point of which is at a distance of 24 nautical miles from the nearest point of the baselines of the territorial sea of Canada, but does not include an area of the sea that forms part of the territorial sea of another state or in which another state has sovereign rights.
11Prevention in contiguous zone of infringement of federal laws#
A person who is responsible for the enforcement of a federal law that is a customs, fiscal, immigration or sanitary law and who has reasonable grounds to believe that a person in the contiguous zone of Canada would, if that person were to enter Canada, commit an offence under that law may, subject to Canada’s international obligations, prevent the entry of that person into Canada or the commission of the offence and, for greater certainty, section 25 of the Criminal Code applies in respect of the exercise by a person of any powers under this section.
12Enforcement in contiguous zone of federal laws#
(1)Where there are reasonable grounds to believe that a person has committed an offence in Canada in respect of a federal law that is a customs, fiscal, immigration or sanitary law, every power of arrest, entry, search or seizure or other power that could be exercised in Canada in respect of that offence may also be exercised in the contiguous zone of Canada.
(2)A power of arrest referred to in subsection (1) shall not be exercised in the contiguous zone of Canada on board any ship registered outside Canada without the consent of the Attorney General of Canada.
Exclusive Economic Zone
13Exclusive economic zone of Canada#
(1)The exclusive economic zone of Canada consists of an area of the sea beyond and adjacent to the territorial sea of Canada that has as its inner limit the outer limit of the territorial sea of Canada and as its outer limit
(a)subject to paragraph (b), the line every point of which is at a distance of 200 nautical miles from the nearest point of the baselines of the territorial sea of Canada; or
(b)in respect of a portion of the exclusive economic zone of Canada for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(iii), lines determined from the geographical coordinates of points so prescribed.
(2)For greater certainty, paragraph (1)(a) applies regardless of whether regulations are made pursuant to subparagraph 25(a)(iv) prescribing geographical coordinates of points from which the outer limit of the exclusive economic zone of Canada may be determined.
14Sovereign rights and jurisdiction of Canada#
Canada has
(a)sovereign rights in the exclusive economic zone of Canada for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the exclusive economic zone of Canada, such as the production of energy from the water, currents and winds;
(b)jurisdiction in the exclusive economic zone of Canada with regard to
(i)the establishment and use of artificial islands, installations and structures,
(ii)marine scientific research, and
(iii)the protection and preservation of the marine environment; and
(c)other rights and duties in the exclusive economic zone of Canada provided for under international law.
15Rights of Her Majesty#
(1)For greater certainty, any rights of Canada in the seabed and subsoil of the exclusive economic zone of Canada and their resources are vested in Her Majesty in right of Canada.
(2)Nothing in this section abrogates or derogates from any legal right or interest held before February 4, 1991.
Continental Shelf
17Continental shelf of Canada#
(1)The continental shelf of Canada is the seabed and subsoil of the submarine areas, including those of the exclusive economic zone of Canada, that extend beyond the territorial sea of Canada throughout the natural prolongation of the land territory of Canada
(a)subject to paragraphs (b) and (c), to the outer edge of the continental margin, determined in the manner under international law that results in the maximum extent of the continental shelf of Canada, the continental margin being the submerged prolongation of the land mass of Canada consisting of the seabed and subsoil of the shelf, the slope and the rise, but not including the deep ocean floor with its oceanic ridges or its subsoil;
(b)to a distance of 200 nautical miles from the baselines of the territorial sea of Canada where the outer edge of the continental margin does not extend up to that distance; or
(c)in respect of a portion of the continental shelf of Canada for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(iii), to lines determined from the geographical coordinates of points so prescribed.
(2)For greater certainty, paragraphs (1)(a) and (b) apply regardless of whether regulations are made pursuant to subparagraph 25(a)(iv) prescribing geographical coordinates of points from which the outer edge of the continental margin or other outer limit of the continental shelf of Canada may be determined.
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18Sovereign rights of Canada#
Canada has sovereign rights over the continental shelf of Canada for the purpose of exploring it and exploiting the mineral and other non-living natural resources of the seabed and subsoil of the continental shelf of Canada, together with living organisms belonging to sedentary species, that is to say, organisms that, at the harvestable stage, either are immobile on or under the seabed of the continental shelf of Canada or are unable to move except in constant physical contact with the seabed or the subsoil of the continental shelf of Canada.
19Rights of Her Majesty#
(1)For greater certainty, any rights of Canada in the continental shelf of Canada are vested in Her Majesty in right of Canada.
(2)Nothing in this section abrogates or derogates from any legal right or interest held before February 4, 1991.
20Application of federal laws — continental shelf installations#
(1)Subject to any regulations made pursuant to paragraph 26(1)(j) or (k), federal laws apply
(a)on or under any marine installation or structure from the time it is attached or anchored to the continental shelf of Canada in connection with the exploration of that shelf or the exploitation of its mineral or other non-living resources until the marine installation or structure is removed from the waters above the continental shelf of Canada;
(b)on or under any artificial island constructed, erected or placed on the continental shelf of Canada; and
(c)within such safety zone surrounding any marine installation or structure or artificial island referred to in paragraph (a) or (b) as is determined by or pursuant to the regulations.
(2)For the purposes of subsection (1), federal laws shall be applied
(a)as if the places referred to in that subsection formed part of the territory of Canada;
(b)notwithstanding that by their terms their application is limited to Canada; and
(c)in a manner that is consistent with the rights and freedoms of other states under international law and, in particular, with the rights and freedoms of other states in relation to navigation and overflight.
21Application of provincial law#
(1)Subject to this section and to any other Act of Parliament, the laws of a province apply to the same extent as federal laws apply pursuant to section 20 in any area of the sea
(a)that forms part of the exclusive economic zone of Canada or is above the continental shelf of Canada;
(b)that is not within any province; and
(c)that is prescribed by the regulations.
(2)Subject to any regulations made pursuant to paragraph 26(1)(d), subsection (1) does not apply in respect of any provision of a law of a province that
(a)imposes a tax or royalty; or
(b)relates to mineral or other non-living natural resources.
(3)For the purposes of this section, the laws of a province shall be applied as if the area of the sea in which those laws apply under this section were within the territory of that province.
(4)Any sum due under a law of a province that applies in an area of the sea under this section belongs to Her Majesty in right of the province.
(5)For greater certainty, this section shall not be interpreted as providing a basis for any claim, by or on behalf of a province, in respect of any interest in or legislative jurisdiction over any area of the sea in which a law of a province applies under this section or the living or non-living resources of that area, or as limiting the application of any federal laws.
Court Jurisdiction
22Jurisdiction extended#
(1)Subject to subsection (4) and to any regulations made pursuant to paragraph 26(1)(h), a court that would have jurisdiction in respect of any matter had the matter arisen in a province has jurisdiction in respect of any such matter involving a federal law that applies pursuant to this Act to the extent that the matter arises in whole or in part in any area of the sea that is not within any province and
(a)that area of the sea is nearer to the coast of that province than to the coast of any other province; or
(b)that province is prescribed by the regulations.
(2)Subject to any regulations made pursuant to paragraph 26(1)(h), a court that would have jurisdiction in respect of any matter had the matter arisen in a province has jurisdiction in respect of any such matter involving a law of the province that applies pursuant to this Act to the extent that the matter arises in whole or in part in any area of the sea to which the law of that province applies pursuant to this Act.
(3)A court referred to in subsection (1) or (2) may make any order or exercise any power it considers necessary in respect of any matter referred to in that subsection.
(4)The jurisdiction and powers of courts with respect to offences under any federal law are determined pursuant to sections 477.3, 481.1 and 481.2 of the Criminal Code.
(5)Nothing in this section limits the jurisdiction that a court may exercise apart from this Act.
(6)In this section, court includes a judge of a court and a justice of the peace.
Miscellaneous Provisions
23Certificate — Minister of Foreign Affairs#
(1)In any legal or other proceedings, a certificate issued by or under the authority of the Minister of Foreign Affairs containing a statement that any geographic location specified in the certificate was, at any time material to the proceedings,
(a)in the internal waters of Canada,
(b)in the territorial sea of Canada,
(c)in the contiguous zone of Canada,
(d)in the exclusive economic zone of Canada, or
(e)in or above the continental shelf of Canada
is conclusive proof of the truth of the statement without proof of the signature or official character of the person appearing to have issued the certificate.
(2)In any legal or other proceedings, a certificate issued by or under the authority of the Minister containing a statement that any geographic location specified in the certificate was, at any time material to the proceedings, within an area of the sea in which a law of the province named in the certificate applies under section 9 or 21 is conclusive proof of the truth of the statement without proof of the signature or official character of the person appearing to have issued the certificate.
(3)A certificate referred to in subsection (1) or (2) is admissible in evidence in proceedings referred to in that subsection, but its production cannot be compelled.
Regulations
25Recommendation — Minister of Foreign Affairs#
The Governor in Council may, on the recommendation of the Minister of Foreign Affairs, make regulations
(a)prescribing geographical coordinates of points from which
(i)baselines may be determined under subsection 5(2) as straight lines interpreted as geodesics,
(ii)in respect of a portion of the territorial sea of Canada prescribed in the regulations, an outer limit line may be determined, where, in the opinion of the Governor in Council, a portion of the territorial sea of Canada determined in accordance with paragraph 4(a) would conflict with the territorial sea of another state or other area of the sea in which another state has sovereign rights or would be unreasonably close to the coast of another state,
(iii)in respect of a portion of the exclusive economic zone of Canada or the continental shelf of Canada prescribed in the regulations, an outer limit line may be determined, where, in the opinion of the Governor in Council, a portion of the exclusive economic zone of Canada or the continental shelf of Canada determined in accordance with paragraph 13(1)(a) or 17(1)(a) or (b) would conflict with the territorial sea of another state or other area of the sea in which another state has sovereign rights or would be unreasonably close to the coast of another state or is otherwise inappropriate, and
(iv)the outer limit of the exclusive economic zone of Canada or the outer edge of the continental margin or other outer limit of the continental shelf of Canada may be determined; and
(b)prescribing areas of the sea adjacent to the coast of Canada as fishing zones of Canada.
26Recommendation — Minister of Justice#
(1)The Governor in Council may, on the recommendation of the Minister of Justice, make regulations
(a)prescribing a work or a class of works for the purpose of the definition marine installation or structure in section 2;
(c)restricting the application of subsection 9(1) or 21(1) to such laws of a province as are specified in the regulations;
(d)making subsection 9(1) or 21(1) applicable, on the terms and conditions, if any, specified in the regulations, in respect of any laws of a province that impose a tax or royalty or relate to mineral or other non-living natural resources;
(e)excluding any law of a province from the application of subsection 9(1) or 21(1);
(f)determining or prescribing the method of determining the safety zone referred to in paragraph 20(1)(c);
(g)prescribing an area of the sea and a province for the purposes of subsection 9(1), 21(1) or 22(1);
(h)restricting the application of subsection 22(1), (2) or (3) to courts of a district or territorial division of a province;
(i)prescribing, in respect of any area of the sea and for the purpose of subsection 22(1), the manner of determining the province that has the coast nearest to that area;
(j)excluding any federal laws or laws of a province or any of their provisions from the application of subsection 20(1) or 21(1), as the case may be, in respect of any area in or above the continental shelf of Canada or in respect of any specified activity in any such area; and
(k)making federal laws or laws of a province or any of their provisions applicable, in such circumstances as are specified in the regulations,
(i)in the exclusive economic zone of Canada or in a portion of that zone,
(ii)in or above the continental shelf of Canada or a portion of that shelf, or
(iii)in any area beyond the continental shelf of Canada, where that application is made pursuant to an international agreement or arrangement entered into by Canada.
(3)For the purposes of paragraphs (1)(j) and (k), federal laws and the laws of a province shall be applied
(a)as if the places referred to in any regulations made pursuant to either of those paragraphs formed part of the territory of Canada;
(b)notwithstanding that by their terms their application is limited to Canada or a province; and
(c)in a manner that is consistent with the rights and freedoms of other states under international law and, in particular, with the rights and freedoms of other states in relation to navigation and overflight.
27Publication of proposed regulations#
(1)A copy of each regulation that the Governor in Council proposes to make pursuant to paragraph 25(b) or section 26 shall be published in the Canada Gazette at least 60 days before its proposed effective date, and a reasonable opportunity shall be given to interested persons and provinces to make representations with respect to the proposed regulation.
(2)No proposed regulation that has been published pursuant to this section need again be published under this section, whether or not it has been altered.
Part II · Oceans Management Strategy
Application
National Strategy
29Development and implementation of strategy#
The Minister, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, shall lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems in waters that form part of Canada or in which Canada has sovereign rights under international law.
30Principles of strategy#
The national strategy will be based on the principles of
(a)sustainable development, that is, development that meets the needs of the present without compromising the ability of future generations to meet their own needs;
(b)the integrated management of activities in estuaries, coastal waters and marine waters that form part of Canada or in which Canada has sovereign rights under international law; and
(c)the precautionary approach, that is, erring on the side of caution.
31Integrated management plans#
The Minister, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, shall lead and facilitate the development and implementation of plans for the integrated management of all activities or measures in or affecting estuaries, coastal waters and marine waters that form part of Canada or in which Canada has sovereign rights under international law.
32Implementation of integrated management plans#
For the purpose of the implementation of integrated management plans, the Minister
(b)shall coordinate with other ministers, boards and agencies of the Government of Canada the implementation of policies and programs of the Government with respect to all activities or measures in or affecting coastal waters and marine waters;
(c)may, on his or her own or jointly with another person or body or with another minister, board or agency of the Government of Canada, and taking into consideration the views of other ministers, boards and agencies of the Government of Canada, provincial and territorial governments and affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements,
(i)establish advisory or management bodies and appoint or designate, as appropriate, members of those bodies, and
(ii)recognize established advisory or management bodies; and
(d)may, in consultation with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, establish marine environmental quality guidelines, objectives and criteria respecting estuaries, coastal waters and marine waters.
33Cooperation and agreements#
(1)In exercising the powers and performing the duties and functions assigned to the Minister by this Act, the Minister
(a)shall cooperate with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements;
(b)may enter into agreements with any person or body or with another minister, board or agency of the Government of Canada;
(c)shall gather, compile, analyse, coordinate and disseminate information;
(d)may make grants and contributions on terms and conditions approved by the Treasury Board; and
(e)may make recoverable expenditures on behalf of and at the request of any other minister, board or agency of the Government of Canada or of a province or any person or body.
(2)In exercising the powers and performing the duties and functions mentioned in this Part, the Minister may consult with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements.
Designation of Marine Protected Areas
35Marine protected areas#
(1)A marine protected area is an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada and has been designated under this section or section 35.1 for special protection for one or more of the following reasons:
(a)the conservation and protection of commercial and non-commercial fishery resources, including marine mammals, and their habitats;
(b)the conservation and protection of endangered or threatened marine species, and their habitats;
(c)the conservation and protection of unique habitats;
(d)the conservation and protection of marine areas of high biodiversity or biological productivity;
(e)the conservation and protection of any other marine resource or habitat as is necessary to fulfil the mandate of the Minister; and
(f)the conservation and protection of marine areas for the purpose of maintaining ecological integrity.
(1.1)For the purpose of paragraph (1)(f), ecological integrity means a condition in which
(a)the structure, composition and function of ecosystems are undisturbed by any human activity;
(b)natural ecological processes are intact and self-sustaining;
(c)ecosystems evolve naturally; and
(d)an ecosystem’s capacity for self-renewal and its biodiversity are maintained.
(2)For the purposes of integrated management plans referred to in sections 31 and 32, the Minister shall lead and coordinate the development and implementation of a national network of marine protected areas on behalf of the Government of Canada.
(2.1)In performing his or her duties and functions under subsection (2), the Minister shall ensure that:
(a)clearly identified objectives are set with regard to each marine protected area; and
(b)the network of marine protected areas covers diverse habitat types, biogeographic regions and environmental conditions.
(3)The Governor in Council, on the recommendation of the Minister, may make regulations
(a)designating marine protected areas;
(b)delineating zones within marine protected areas;
(c)prohibiting classes of activities within marine protected areas; and
(d)respecting any other matter consistent with the purpose of the designation.
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35.1Definitions#
(1)The following definitions apply in this section.
foreign national has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act. (étranger)
foreign ship means a ship that is a foreign vessel, as defined in section 2 of the Canada Shipping Act, 2001. (navire étranger)
ongoing means, with respect to an activity in the area of the sea that is designated by an order made under subsection (2) as a marine protected area, that the activity
(a)was lawfully carried out in the year immediately before the day on which the order comes into force and does not require an authorization, including a permit or licence, under any applicable federal laws or laws of a province;
(b)was lawfully carried out in the year immediately before the day on which the order comes into force and was authorized, including by a permit or licence, under any applicable federal laws or laws of a province; or
(c)was not carried out before the day on which the order comes into force, but was authorized and continues to be authorized, including by a permit or licence, under any applicable federal laws or laws of a province. (en cours)
(2)The Minister may, by order, designate a marine protected area in any area of the sea that is not designated as a marine protected area under paragraph 35(3)(a), in a manner that is not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament and, in that order, the Minister
(a)shall list the classes of activities that are ongoing activities in the marine protected area;
(b)shall prohibit, in the marine protected area, any activity that is not part of a class of activities set out in paragraph (a) and that disturbs, damages, destroys or removes from that marine protected area any unique geological or archeological features or any living marine organism or any part of its habitat or is likely to do so;
(c)may prohibit, in the marine protected area, any activity that is part of a class of activities set out in paragraph (a) and that is governed by an Act of Parliament under which the Minister is responsible for the management, conservation or protection of fisheries resources; and
(d)may exempt from the prohibition in paragraph (b) or (c), subject to any conditions that the Minister considers appropriate, any activity referred to in those paragraphs in the marine protected area by a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state.
(3)The prohibitions set out in an order made under subsection (2) do not apply to the following activities:
(a)activities that are carried out in response to an emergency situation or that are carried out by or on behalf of Her Majesty for the purpose of public safety, national defence, national security or law enforcement; and
(b)marine scientific research activities that are consistent with the purpose of the designation of the marine protected area and that are authorized under federal laws or laws of a province, if required to be so authorized.
(4)If an order is made under subsection (2), the Minister shall publish, in any manner that the Minister considers appropriate, a report
(a)indicating the area of the sea designated in the order;
(b)summarizing the consultations undertaken prior to making the order; and
(c)summarizing the information that the Minister considered when making the order, which may include environmental, social, cultural or economic information.
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35.2Powers, duties and functions#
The Governor in Council and the Minister shall not use lack of scientific certainty regarding the risks posed by any activity that may be carried out in certain areas of the sea as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.1(2).note
35.3Recommendation of Minister#
(1)The Minister shall, not later than the fifth anniversary of the day on which an order under subsection 35.1(2) comes into force,
(a)recommend to the Governor in Council that the Governor in Council make a regulation under subsection 35(3) to designate a marine protected area covering at least part of the area of the sea that is designated by the order made under subsection 35.1(2); or
(b)repeal the order.
(2)The Governor in Council may repeal the order if the Governor in Council makes a regulation referred to in paragraph (1)(a).
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36Interim marine protected areas in emergency situations#
(1)The Governor in Council, on the recommendation of the Minister, may make orders exercising any power under section 35 on an emergency basis, where the Minister is of the opinion that a marine resource or habitat is or is likely to be at risk to the extent that such orders are not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament.
(2)An order made under this section is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.
(3)An order made under this section that is not repealed ceases to have effect 90 days after it is made.
(4)In the event of any inconsistency between an order made under subsection (1) and an order made under subsection 35.1(2), the order made under subsection (1) prevails to the extent of the inconsistency.
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Administration and Enforcement
Designation
39Enforcement officers#
(1)The Minister may designate persons or classes of persons as enforcement officers for the purposes of the administration and enforcement of this Act and the regulations.
(2)The Minister may not designate any person or class of persons employed by the government of a province unless that government agrees.
(3)Every enforcement officer must be provided with a certificate of designation as an enforcement officer in a form approved by the Minister and, on entering any place under this Act, the officer shall, if so requested, show the certificate to the occupant or person in charge of the place.
(4)For the purposes of this Act and the regulations, enforcement officers have all the powers of a peace officer, but the Minister may specify limits on those powers when designating any person or class of persons.
(5)For the purpose of investigations and other law enforcement activities under this Act, the Minister may, on any terms and conditions the Minister considers necessary, exempt enforcement officers who are carrying out duties or functions under this Act, and persons acting under their direction and control, from the application of any provision of this Act or the regulations.
(6)When an enforcement officer is carrying out duties or functions under this Act or the regulations, no person shall
(a)knowingly make any false or misleading statement either orally or in writing to the enforcement officer; or
(b)otherwise wilfully obstruct the enforcement officer.
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Enforcement Officer’s Powers
39.1Inspections#
(1)For a purpose related to verifying compliance or preventing non-compliance with this Act and the regulations, an enforcement officer may enter and inspect any place, including any conveyance, in which the enforcement officer has reasonable grounds to believe, that there is any thing to which this Act or the regulations apply or any book, record, electronic data or other document relating to the application of this Act or the regulations, and the enforcement officer may, for that purpose,
(a)open or cause to be opened any container that the enforcement officer has reasonable grounds to believe contains that thing, book, record, electronic data or other document;
(b)examine the thing and take samples free of charge;
(c)require any person to produce the book, record, electronic data or other document for examination or copying, in whole or in part;
(d)use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system;
(e)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; and
(f)use or cause to be used any copying equipment at the place being inspected to make copies of any book, record, electronic data or other document.
(1.1)An enforcement officer may dispose of a sample taken under paragraph (1)(b) in any manner that the officer considers appropriate.
(1.2)For the purposes of subsection (1), the enforcement officer may seize any thing that the enforcement officer has reasonable grounds to believe
(a)was used in the contravention of this Act or the regulations;
(b)is something in relation to which this Act or the regulations have been contravened; or
(c)was obtained by the contravention of this Act or the regulations.
(1.3)The owner or the person in charge of the place, and every person found in the place, shall
(a)give the enforcement officer all assistance that is reasonably required to enable the officer to exercise their powers or to perform their duties or functions under this section; and
(b)provide the enforcement officer with any information or any book, record, electronic data or other document, and access to any data, that are reasonably required for that purpose.
(2)For the purposes of carrying out the inspection, the enforcement officer may stop a conveyance or direct that it be moved to any place, including in Canadian waters or the exclusive economic zone of Canada, where the inspection can be carried out.
(2.1)An enforcement officer and any person accompanying them may enter and pass through private property, other than a dwelling-place, in order to gain entry to a place referred to in subsection (1). For greater certainty, neither person is liable for doing so.
(2.2)A person acting under the direction and control of an enforcement officer may, for the purposes of exercising the officer’s powers or performing the officer’s duties and functions under this section, enter and pass through private property, other than a dwelling-place, in order to gain entry to a marine protected area. For greater certainty, the person is not liable for doing so.
(3)The enforcement officer may not enter a dwelling-place except with the consent of the occupant or person in charge of the dwelling-place or under the authority of a warrant.
(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 to the dwelling-place is necessary in relation to the administration of this Act or the regulations, and
(c)entry to the dwelling-place has been refused or there are reasonable grounds for believing that entry will be refused,
the justice may issue a warrant authorizing the enforcement officer to enter the dwelling-place subject to any conditions that may be specified in the warrant.
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Direction and Detention of Ships
39.2Direction of ship to place#
An enforcement officer may direct a ship to move to any place in Canadian waters or the exclusive economic zone of Canada if they have reasonable grounds to believe that the ship or a person on board the ship has committed, is committing or is about to commit an offence under this Act in Canadian waters or the exclusive economic zone of Canada and that the ship was, is being or is about to be used in connection with the commission of the offence.note
39.21Detention order to ship#
(1)An enforcement officer may make a detention order in relation to a ship if they have reasonable grounds to believe that the ship or a person on board the ship has committed an offence under this Act in Canadian waters or the exclusive economic zone of Canada and that the ship was used in connection with the commission of the offence.
(3)Notice of the detention order shall be served by delivering a copy of the notice personally to the master or another officer, the authorized representative, the owner or the operator of the ship, or if service cannot reasonably be effected personally, by posting a copy of the notice on any conspicuous part of the ship.
(4)Once notice of the detention order is served on any person referred to in subsection (3), the ship shall not move, other than in accordance with any conditions specified in the order, until the order has been rescinded.
(5)Subject to subsection (6), a person who has received the detention order shall not give clearance to the ship to which the order relates.
(6)A person who has received the detention order may give clearance to the ship to which the order relates if
(a)neither the ship nor any person is charged with the offence that gave rise to the making of the order within 30 days after the day on which the order is made;
(b)within 30 days after the day on which the order is made, the ship or a person is charged with the offence and every accused has appeared in Canada to answer to the charge;
(c)Her Majesty in right of Canada is given security, in a form determined by the Minister, for payment of the maximum fine that may be imposed as a result of a conviction of every accused and costs that might be incurred in proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Minister;
(d)all proceedings in respect of the offence that gave rise to the making of the order are discontinued; or
(e)the order is rescinded by an enforcement officer.
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Compliance Orders
39.22Compliance order#
(1)If an enforcement officer has reasonable grounds to believe that a person is committing an offence under this Act — or is about to commit an offence under this Act — the enforcement officer may issue a compliance order directing any person described in subsection (3) to take, at their own expense, any of the measures referred to in subsection (4) that the enforcement officer believes are reasonable in the circumstances, and consistent with the protection and preservation of the marine environment and with public safety, in order to cease the commission of the offence or to refrain from committing it.
(2)For the purposes of subsection (1), an order is deemed to have been given to the ship and is binding on it, if
(a)the order is given to the master or another officer, the authorized representative, the owner or the operator of the ship; or
(b)in the case of an order that cannot be given to any person referred to in paragraph (a) despite reasonable efforts having been made to do so, the order is posted on any conspicuous part of the ship.
(3)Subsection (1) applies to any person who causes or contributes to, or is likely to cause or contribute to, the offence.
(4)The compliance order may require that the person to whom it is directed take one or more of the following measures:
(a)do anything to comply with this Act or the regulations;
(b)refrain from doing anything in contravention of this Act or the regulations;
(c)cease any activity for a specified period or until the enforcement officer is satisfied that the activity is in compliance with this Act and the regulations;
(d)move any conveyance to a location by the route and in the manner that the enforcement officer specifies;
(e)unload or reload the contents of any conveyance; and
(f)take any other reasonable measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the marine environment damaged by the offence or to protect the components of the marine environment that would be put at risk if the offence were committed — including
(i)maintaining records on any relevant matter,
(ii)reporting periodically to the enforcement officer, and
(iii)submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject-matter of the order.
(5)Subject to section 39.23, the compliance order shall be made in writing and shall set out
(a)the name of the person or persons to whom it is directed;
(b)the provisions of this Act or the regulations, or the order made under subsection 35.1(2) or 36(1), that has been or that is about to be contravened;
(c)the relevant facts surrounding the offence described in subsection (1);
(d)the measures to be taken; and
(e)the time or the day when each measure is to begin or the period during which it is to be carried out.
(6)A compliance order is not a statutory instrument for the purposes of the Statutory Instruments Act.
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39.23Order given orally#
(1)In the case of exigent circumstances, a compliance order may be given orally on the condition that it is followed, within seven days after the day on which the oral order was issued, by a written order issued in accordance with section 39.22.
(2)For the purposes of subsection (1), exigent circumstances include circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 39.22(5) would result in danger to human life or the marine environment.
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39.24Compliance with compliance order#
(1)A person to whom a compliance order is issued shall, immediately on receipt of the order or a copy of it, or on being given an order orally under subsection 39.23(1), comply with the order.
(2)The issuance of, or compliance with, a compliance order is not a bar to any proceedings against the person under this or any other Act in relation to the offence described in subsection 39.22(1).
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39.25Intervention by enforcement officer#
(1)If a person to whom a compliance order is issued fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.
(2)An enforcement officer or other person authorized by an enforcement officer to take measures under subsection (1) may enter and have access to any place, other than a dwelling-place, and may do any reasonable thing that may be necessary in the circumstances.
(3)A person, other than a person described in subsection 39.22(3), who provides assistance or advice to the enforcement officer in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.
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39.26Recovery of reasonable costs and expenses by Her Majesty#
(1)Her Majesty in right of Canada may recover the costs and expenses of, and any costs and expenses incidental to, any measures taken under subsection 39.25(1) from any person referred to in subsection 39.22(3).
(2)The costs and expenses may be recovered only to the extent that they can be established to have been reasonably incurred in the circumstances.
(3)The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.
(4)A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.
(5)This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.
(6)If events giving rise to a claim under this section occur, proceedings in respect of the claim may be commenced not later than five years after the day on which the events occur.
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Things Seized, Detained, Abandoned or Forfeited
39.3Custody of things seized#
(1)Subject to subsections (2) to (3.1), if an enforcement officer seizes a thing under this Act or under a warrant issued under the Criminal Code,
(a)sections 489.1 and 490 of the Criminal Code apply; and
(b)the enforcement officer, or any person that the officer may designate, shall retain custody of the thing, subject to any order made under section 490 of the Criminal Code.
(2)Where the lawful ownership of or entitlement to the seized thing cannot be ascertained within thirty days after its seizure, the thing or any proceeds of its disposition are forfeited to
(a)Her Majesty in right of Canada, if the thing was seized by an enforcement officer employed in the federal public administration; or
(b)Her Majesty in right of a province, if the thing was seized by an enforcement officer employed by the government of that province.
(3)Where the seized thing is perishable, the enforcement officer may dispose of it or destroy it, and any proceeds of its disposition must be
(a)paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are commenced within ninety days after its seizure; or
(b)retained by the enforcement officer pending the outcome of the proceedings.
(3.1)The enforcement officer who seizes any fish as defined in subsection 2(1) of the Fisheries Act may, at the time of the seizure, return to the water any fish that they believe to be alive.
(4)The owner of the seized thing may abandon it to Her Majesty in right of Canada or a province.
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39.4Disposition by Minister#
Any thing that has been forfeited or abandoned under this Act must be dealt with and disposed of as the Minister may direct.
39.5Liability for costs#
The lawful owner and any person lawfully entitled to possession of any thing seized, detained, abandoned or forfeited under this Act are jointly and severally, or solidarily, liable for all the costs of inspection, seizure, detention, abandonment, forfeiture or disposition incurred by Her Majesty in right of Canada in excess of any proceeds of disposition of the thing that have been forfeited to Her Majesty under this Act.note
Offences and Punishment
39.6Offence and punishment — persons#
(1)Every individual or corporation that contravenes subsection 39.21(5) or 39.24(1), a regulation made under paragraph 35(3)(c) or (d) or 52.1(a), or an order made under subsection 35.1(2) or 36(1) is guilty of an offence and liable
(a)on conviction on indictment,
(i)in the case of an individual,
(A)for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000,
(ii)in the case of a corporation, other than a corporation referred to in subparagraph (iii),
(A)for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and
(iii)in the case of a corporation that the court has determined to be a small revenue corporation,
(A)for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b)on summary conviction,
(i)in the case of an individual,
(A)for a first offence, to a fine of not less than $5,000 and not more than $300,000, and
(B)for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000,
(ii)in the case of a corporation, other than a corporation referred to in subparagraph (iii),
(A)for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and
(iii)in the case of a corporation that the court has determined to be a small revenue corporation,
(A)for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
(2)Every ship that contravenes subsection 39.21(4) or 39.24(1), a regulation made under paragraph 35(3)(c) or (d) or 52.1(a), an order made under subsection 35.1(2) or 36(1) or a direction made under section 39.2 is guilty of an offence and liable
(a)on conviction on indictment,
(i)in the case of a ship of 7 500 tonnes deadweight or more,
(A)for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and
(ii)in the case of a ship of less than 7 500 tonnes deadweight,
(A)for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b)on summary conviction,
(i)in the case of a ship of 7 500 tonnes deadweight or more,
(A)for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and
(ii)in the case of a ship of less than 7 500 tonnes deadweight,
(A)for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B)for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
(3)Every individual or corporation that contravenes subsection 39(6) or a regulation made under paragraph 52.1(b) or (c) is guilty of an offence and liable
(a)on conviction on indictment,
(i)for a first offence, to a fine of not more than $500,000, and
(ii)for a second or subsequent offence, to a fine of not more than $1,000,000; or
(b)on summary conviction,
(i)for a first offence, to a fine of not more than $100,000, and
(ii)for a second or subsequent offence, to a fine of not more than $200,000.
(4)Every ship that contravenes any regulation made under paragraph 52.1(b) or (c) is guilty of an offence and liable
(a)on conviction on indictment,
(i)for a first offence, to a fine of not more than $500,000, and
(ii)for a second or subsequent offence, to a fine of not more than $1,000,000; or
(b)on summary conviction,
(i)for a first offence, to a fine of not more than $100,000, and
(ii)for a second or subsequent offence, to a fine of not more than $200,000.
(5)For the purposes of subsection (1), a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the year immediately before the day on which the offence is committed — or, if the offence is committed on more than one day, for the year immediately before the first day on which the offence is committed — were not more than $5,000,000.
(6)The minimum amounts of fines set out in this section do not apply to any proceeding brought in accordance with subsection 39.93(1) or under the Contraventions Act.
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39.61Liability of directors, officers or agents or mandataries#
If a corporation or a ship owned or operated by a corporation commits an offence under section 39.6, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by that section for an individual in respect of the offence committed by the corporation or the ship, whether or not the corporation or the ship has been prosecuted or convicted.note
39.62Liability of owners, operators, masters and chief engineers of ships#
If a ship commits an offence under section 39.6 and the owner, operator, master or chief engineer of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner, operator, master or chief engineer, as the case may be, is a party to and guilty of the offence and is liable on conviction to the penalty provided for by that section for an individual who commits an offence under that section, whether or not the ship has been prosecuted or convicted.note
39.63Defence#
(1)A person shall not be found guilty of an offence under section 39.6, other than an offence consisting of a contravention of subsection 39(6), if the person establishes that they exercised due diligence to prevent the commission of the offence.
(2)If a ship is prosecuted for an offence, only the persons referred to in subsection 39.67(5) may establish, for the purposes of subsection (1), that they exercised due diligence to prevent the commission of the offence.
(3)A person shall not be found guilty of an offence consisting of a contravention of an order made under subsection 36(1) that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that reasonable steps had been taken before that time to bring the purport of the order to the attention of those persons likely to be affected by it.
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39.64Continuing offence#
(1)A person who commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
(2)If a person is convicted of an offence involving more than one animal, plant, other organism or object, the fine to be imposed in respect of that offence may be, despite section 39.6, the total of the fines that would have been imposed if each of the animals, plants, organisms or objects had been the subject of a separate information.
(3)If a person is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order them to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under section 39.6.
(4)A conviction for a particular offence under section 39.6 is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the person has been previously convicted — under any Act of Parliament or an Act of a provincial legislature that relates to environmental or wildlife protection or conservation — of a substantially similar offence.
(5)Subsection (4) applies only to previous convictions on indictment, to previous convictions on summary conviction and to previous convictions under any similar procedure under an Act of a provincial legislature.
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39.65Relief from minimum fine#
The court may impose a fine that is less than the minimum amount provided for in section 39.6 if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship to the person who has been convicted of an offence. The court shall provide reasons if it imposes a fine that is less than the minimum amount.note
39.66Application of fines#
(1)All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to the conservation, protection or restoration of marine protected areas, or for administering that Fund.
(2)The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1).
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39.67Application to ships#
(1)The provisions of this Part — and those of any regulations or orders made under this Part or any regulations made under section 52.1 — relating to indictable or summary conviction offences that apply to persons also apply to ships, with any modifications that the circumstances require.
(2)The provisions of the Criminal Code relating to indictable or summary conviction offences that apply to persons also apply to ships, with any modifications that the circumstances require.
(3)When a ship is charged with an offence under section 39.6, the summons may be served by leaving it with the master or another officer, the authorized representative, the owner or the operator of the ship, or if it cannot reasonably be left with any of those persons, by posting a copy of it on any conspicuous part of the ship.
(4)If a ship is charged with an offence under section 39.6, the ship may appear by counsel or representative before the court. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.
(5)If a ship is prosecuted for an offence under section 39.6, it is sufficient proof of the offence to establish that the act or omission that constitutes the offence was committed by the master of the ship or any other person on board the ship, whether or not the person on board has been identified or has been prosecuted for the offence.
(6)For the purpose of prosecuting a ship for contravening a direction made under section 39.2, any direction made under that section that is given to the master or another officer, the authorized representative, the owner or the operator of the ship is deemed to have been given to the ship and is binding on it.
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39.68Sentencing principles#
(1)In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:
(a)the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b)the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
(2)The aggravating factors to be considered by the court in respect of a person convicted of an offence are the following:
(a)the offence caused damage or a risk of damage to any marine resource, habitat or ecosystem;
(b)the offence caused damage or a risk of damage to any unique, rare, particularly important or vulnerable marine resource, habitat or ecosystem;
(c)the damage caused by the offence is extensive, persistent or irreparable;
(d)the person committed the offence intentionally or recklessly;
(e)the person failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;
(f)by committing the offence or failing to take action to prevent its commission, the person increased revenue or decreased costs or intended to increase revenue or decrease costs;
(g)the person committed the offence despite having been warned by the Minister or an enforcement officer of the circumstances that subsequently became the subject of the offence;
(h)the person has a history of non-compliance with an Act of Parliament or an Act of a provincial legislature that relates to environmental or wildlife protection or conservation; and
(i)after committing the offence, the person
(i)attempted to conceal its commission,
(ii)failed to take prompt action to prevent, mitigate or remediate its effects, or
(iii)failed to take prompt action to reduce the risk of committing similar offences in the future.
(3)The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
(4)For the purposes of paragraphs (2)(a) to (c), damage includes loss of use value and non-use value.
(5)If the court decides not to increase the amount of the fine despite being satisfied of the existence of one or more of the aggravating factors set out in subsection (2), the court shall provide reasons for that decision.
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39.7Forfeiture#
(1)Where a person is convicted of an offence, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty in right of Canada.
(2)Where the convicting court does not order the forfeiture, the seized thing, or the proceeds of its disposition, must be returned to its lawful owner or the person lawfully entitled to it.
39.8Retention or sale#
Where a fine is imposed on a person convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid, or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.
39.9Orders of court#
(1)Where a person is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:
(a)prohibiting the person from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;
(b)directing the person to take any action that the court considers appropriate to remedy or avoid any harm to estuarine, coastal or ocean waters, or their resources that resulted or may result from the commission of the offence;
(c)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 perform community service in accordance with any reasonable conditions that may be specified in the order;
(g)requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences;
(h)directing the person to post a bond or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement under this section;
(i)directing the person to pay, in the manner specified by the court, an amount for monitoring the environmental effects of any activity or marine installation or structure on any marine resource, habitat or ecosystem in any marine protected area;
(j)directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the conservation, protection or restoration of any marine protected area;
(k)directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted with respect to the conservation, protection or restoration of any marine protected area;
(l)directing the person to pay, in the manner specified by the court, an amount to environmental or other groups to assist in their work related to marine protected areas; and
(m)directing the person to pay, in the manner specified by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment.
(2)If the court makes an order under paragraph (1)(j) directing a person to pay an amount to Her Majesty in right of Canada, the amount constitutes a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
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39.91Suspended sentence#
(1)Where a person is convicted of an offence and the court suspends the passing of sentence pursuant to the Criminal Code, the court may, in addition to any probation order made on suspending the passing of that sentence, make an order containing one or more of the prohibitions, directions or requirements mentioned in section 39.9.
(2)Where the person does not comply with the order or is convicted of another offence, within three years after the order was made, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.
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39.92Limitation period#
Proceedings by way of summary conviction in respect of an offence may be commenced not later than five years after the day on which the offence was committed.note
39.93Procedure#
(1)In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any offence prescribed by the regulations may be commenced by an enforcement officer
(a)completing a ticket that consists of a summons portion and an information portion;
(b)delivering the summons portion to the accused or mailing it to the accused at the accused’s latest known address; and
(c)filing the information portion with a court of competent jurisdiction before the summons portion has been delivered or mailed or as soon as is practicable afterward.
(2)The summons and information portions of the ticket must
(a)set out a description of the offence and the time and place of its alleged commission;
(b)include a statement, signed by the enforcement officer who completes the ticket, that the officer has reasonable grounds to believe that the accused committed the offence;
(c)set out the amount of the fine prescribed by the regulations for the offence and the manner in which and period within which it may 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 on the day and at the time set out in the ticket.
(3)Where a thing is seized under this Act and proceedings relating to it are commenced by way of the ticketing procedure, the enforcement officer who completes the ticket shall give written notice to the accused that, if the accused pays the fine prescribed by the regulations within the period set out in the ticket, the thing, or any proceeds of its disposition, will be immediately forfeited to Her Majesty.
(4)Where 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)the payment constitutes a plea of guilty to the offence and 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)notwithstanding section 39.3, any thing seized from the accused under this Act that relates to the offence, or any proceeds of its disposition, are forfeited to
(i)Her Majesty in right of Canada, if the thing was seized by an enforcement officer employed in the federal public administration, or
(ii)Her Majesty in right of a province, if the thing was seized by an enforcement officer employed by the government of that province.
(5)The Governor in Council may make regulations prescribing
(a)offences in respect of which this section applies and the manner in which the offences are to be described in tickets; and
(b)the amount of the fine for a prescribed offence, but the amount may not exceed $2,000.
note
Part III · Powers, Duties and Functions of the Minister
General
40Powers, duties and functions of the Minister#
(1)As the Minister responsible for oceans, the powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not assigned by law to any other department, board or agency of the Government of Canada, relating to the policies and programs of the Government of Canada respecting oceans.
(2)For the purpose of subsection (1), the Minister shall encourage activities necessary to foster understanding, management and sustainable development of oceans and marine resources and the provision of hydrographic services to ensure the facilitation of marine trade, commerce and safety in collaboration with other ministers of the Government of Canada.
note
Coast Guard Services
41Coast guard services#
(1)The Minister of National Defence is responsible for coast guard services and their powers, duties and functions extend to and include all matters over which Parliament has jurisdiction, not assigned by law to any other department, board or agency of the Government of Canada, relating to
(a)services for the safe, economical and efficient movement of ships in Canadian waters through the provision of
(i)aids to navigation systems and services,
(ii)marine communications and traffic management services,
(iii)ice breaking and ice management services, and
(iv)channel maintenance;
(b)the marine component of the federal search and rescue program;
(c)response to wrecks and hazardous or dilapidated ships;
(d)marine pollution response;
(e)the support of departments, boards and agencies of the Government of Canada through the provision of ships, aircraft and other services; and
(f)security, including security patrols and the collection, analysis and disclosure of information or intelligence.
(2)The Minister of National Defence shall ensure that the services referred to in subparagraphs (1)(a)(i) to (iv) are provided in a cost-effective manner.
note
41.1Powers with respect to information and intelligence#
In exercising the powers and performing the duties and functions assigned to them under section 41, the Minister, or any other member of the King’s Privy Council for Canada designated under subsection 41(1), may collect, analyze and disclose information or intelligence.note
Marine Sciences
42Functions#
In exercising the powers and performing the duties and functions assigned by paragraph 4(1)(c) of the Department of Fisheries and Oceans Act, the Minister may
(a)collect data for the purpose of understanding oceans and their living resources and ecosystems;
(b)conduct hydrographic and oceanographic surveys of Canadian and other waters;
(c)conduct marine scientific surveys relating to fisheries resources and their supporting habitat and ecosystems;
(d)conduct basic and applied research related to hydrography, oceanography and other marine sciences, including the study of fish and their supporting habitat and ecosystems;
(e)carry out investigations for the purpose of understanding oceans and their living resources and ecosystems;
(f)prepare and publish data, reports, statistics, charts, maps, plans, sections and other documents;
(g)authorize the distribution or sale of data, reports, statistics, charts, maps, plans, sections and other documents;
(h)prepare in collaboration with the Minister of Foreign Affairs, publish and authorize the distribution or sale of charts delineating, consistently with the nature and scale of the charts, all or part of the territorial sea of Canada, the contiguous zone of Canada, the exclusive economic zone of Canada and the fishing zones of Canada and adjacent waters;
(i)participate in ocean technology development; and
(j)conduct studies to obtain traditional ecological knowledge for the purpose of understanding oceans and their living resources and ecosystems.
43Powers#
Subject to section 4 of the Department of Fisheries and Oceans Act respecting the powers, duties and functions of the Minister in relation to matters mentioned in that section over which Parliament has jurisdiction, the Minister
(a)is responsible for coordinating, promoting and recommending national policies and programs with respect to fisheries science, hydrography, oceanography and other marine sciences;
(b)in carrying out his or her responsibilities under this section, may
(i)conduct or cooperate with persons conducting applied and basic research programs and investigations and economic studies for the purpose of understanding oceans and their living resources and ecosystems, and
(ii)for that purpose maintain and operate ships, research institutes, laboratories and other facilities for research, surveying and monitoring for the purpose of understanding oceans and their living resources and ecosystems; and
(c)may provide marine scientific advice, services and support to the Government of Canada and, on behalf of the Government, to the governments of the provinces, to other states, to international organizations and to other persons.
44Marine scientific research by foreign ships#
The Minister may
(a)request the Minister of Foreign Affairs to attach to a consent of the Minister of Foreign Affairs under paragraph 3(2)(c) of the Coasting Trade Act a condition that the foreign ship or non-duty paid ship supply the Minister with the results of the marine scientific research conducted by that ship in waters that form part of Canada or in which Canada has sovereign rights under international law; and
(b)establish guidelines, not inconsistent with Canada’s international obligations, for use by foreign ships and non-duty paid ships in conducting marine scientific research in waters that form part of Canada or in which Canada has sovereign rights under international law.
45Minister’s powers#
As the Minister responsible for hydrographic services, the powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not assigned by law to any other department, board or agency of the Government of Canada, relating to
(a)setting standards and establishing guidelines for use by hydrographers and others in collecting data and preparing charts on behalf of the Minister; and
(b)providing hydrographic advice, services and support to the Government of Canada and, on behalf of the Government, to the governments of the provinces, to other states, to international organizations and to other persons.
Fees
47Fees for services or use of facilities#
(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 by the Minister, the Department or any board or agency of the Government of Canada for which the Minister has responsibility.
(2)Fees for a service or the use of a facility 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.
48Fees for products, rights and privileges#
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 by the Minister, the Department or any board or agency of the Government of Canada for which the Minister has responsibility.
49Fees in respect of regulatory processes, etc.#
(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 by the Minister, the Department or any board or agency of the Government of Canada for which the Minister has responsibility.
(2)Fees that are fixed under subsection (1) shall in the aggregate not exceed an amount sufficient to compensate Her Majesty in right of Canada for any reasonable outlays incurred by Her Majesty for the purpose of providing the regulatory processes or approvals.
50Consultation#
(2)The Minister shall, within 30 days after fixing a fee under this Act, publish the fee in the Canada Gazette and by such appropriate electronic or other means that the Treasury Board may authorize by regulation.
(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.
51Power to make regulations#
The Treasury Board may make regulations for the purposes of section 47, 48, 49 or 50.
52Review#
(1)The administration of this Act shall, within three years after the coming into force of this section, be reviewed by the Standing Committee on Fisheries and Oceans.
(2)The Committee shall undertake a comprehensive review of the provisions and operation of this Act, including the consequences of its implementation, and shall, within a year after the review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon including a statement of any changes to this Act or its administration that the Committee would recommend.
52.1Regulations#
The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Act and, in particular, but without restricting the generality of the foregoing, may make regulations
(a)prescribing marine environmental quality requirements and standards;
(b)respecting the powers and duties of persons designated by the Minister as enforcement officers; and
(c)respecting the implementation of provisions of agreements made under this Act.
Conditional Amendments
Repeals
Related Amendments
Coming into Force
Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.