Marginal note:Custody

• 33. (1) Anything seized under section 32 must be delivered into the custody of a person whom the Minister designates.

• Marginal note:Discharge of cargo

  (2) If a thing seized under section 32 has cargo on board, the cargo may be discharged, under the supervision of

  • (a) the enforcement officer or other person by whom the thing was seized, or

  • (b) the person into whose custody the thing was delivered in accordance with subsection (1),

  at the place in Canada that is capable of receiving the cargo and is nearest to the place of seizure, or at any other place that is satisfactory to the enforcement officer or other person supervising the discharge of the cargo.

• Marginal note:Sale of perishable cargo

  (3) If a thing seized under section 32 has cargo on board that is perishable,

  • (a) the enforcement officer or other person by whom the thing was seized, or

  • (b) the person into whose custody the thing was delivered in accordance with subsection (1)

  may sell the cargo or the portion of it that is perishable, and the proceeds of the sale shall be paid to the Receiver General or shall be deposited in a bank to the credit of the Receiver General.

• Marginal note:Order for delivery of cargo

  (4) The owner of the cargo may apply to the Federal Court for an order requiring the person who has custody of the cargo or the proceeds of any sale of the cargo to deliver the cargo or proceeds to the owner, and the Court may make the order if it is satisfied that the applicant is the owner of the cargo to which the application relates.

Marginal note:Redelivery on deposit of security

• 34. (1) If a thing has been seized under section 32, the Federal Court may, with the consent of the Minister, order redelivery of the thing or delivery of the proceeds realized from a sale of any perishable cargo under subsection 33(3) to the person from whom the thing was seized if security in the form of a bond, in an amount and form satisfactory to the Minister, is given to the Minister.

• Marginal note:Seized vessel etc., to be returned unless proceedings instituted

  (2) Anything referred to in subsection (1) that has been seized under section 32, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the day of its seizure unless, before the expiry of that period, proceedings are instituted in respect of an offence under this Act alleged to have been committed by the owner of the thing.

Detention in Canada

Marginal note:Seizure

• 35. (1) Whenever, during the course of an inspection or search, an enforcement officer has reasonable grounds to believe that an offence under this Act has been committed, the enforcement officer may seize and detain anything

  • (a) by means of or in relation to which the enforcement officer reasonably believes the offence occurred; or

  • (b) that the enforcement officer reasonably believes will afford evidence of the offence.

• Marginal note:Limitation

  (2) An enforcement officer shall not seize anything under subsection (1) unless the thing is required as evidence or for purposes of analysis, or unless the enforcement officer is of the opinion that the seizure is necessary in the public interest.

• Marginal note:Notice of contravention

  (3) An enforcement officer who has seized and detained a thing under subsection (1) shall, as soon as practicable, advise the person in whose possession it was at the time of the seizure of the provision of this Act or the regulations that the enforcement officer believes has been contravened.

• Marginal note:Detention and release

  (4) A thing seized under subsection (1) or section 32, other than a vessel or aircraft, shall not be detained

  • (a) after the owner of the thing or the person in whose possession it was at the time of the seizure applies to the enforcement officer or to the Minister for its release and the enforcement officer or the Minister is satisfied that it is not necessary in the public interest to continue to detain the thing or that the thing is not required as evidence or for purposes of analysis; or

  • (b) after the expiry of 90 days after the day of its seizure, unless before that time

    • (i) the thing has been forfeited under section 40,

    • (ii) proceedings have been instituted in respect of the contravention in relation to which the thing was seized, in which case it may be detained until the proceedings are finally concluded, or

    • (iii) the Minister has, in accordance with section 36, served or made reasonable efforts to serve notice of an application for an order extending the period during which the thing may be detained.

• Marginal note:Storage of seized thing

  (5) A thing seized by an enforcement officer under subsection (1) or section 32, other than a vessel, aircraft, platform or other structure, shall be kept or stored in the place where it was seized except if

  • (a) in the opinion of the enforcement officer,

    • (i) it is not in the public interest to do so, or

    • (ii) the thing seized, or a sample of it, is required as evidence and removal and storage of the thing seized are necessary to ensure that the thing or sample will be available as evidence in any related proceedings, or

  • (b) the person in whose possession it was at the time of its seizure or the person entitled to possession of the place requests the enforcement officer to have it removed to some other place,

  in which case, the thing may be removed to and stored in any other place at the direction of or with the concurrence of an enforcement officer and at the expense of the person who requested that it be removed.

• Marginal note:Interference with seized thing

  (6) Unless authorized by an enforcement officer, no person shall remove, alter or interfere in any way with a thing seized and detained by an enforcement officer under subsection (1) or section 32, but an enforcement officer shall, at the request of the person from whom it was seized, allow that person or any person authorized by that person to examine it and, if practicable, provide a sample or copy of it to that person.

Marginal note:Application to extend period of detention

• 36. (1) If proceedings referred to in paragraph 35(4)(b) have not been instituted in respect of the contravention in relation to which a thing was seized under section 32 or subsection 35(1), the Minister may, before the expiry of 90 days after the day of its seizure and on serving prior notice in accordance with subsection (2) on the owner of the thing or on the person who at the time of the seizure was in possession of it, apply to a provincial court judge, as defined in section 2 of the Criminal Code, within whose territorial jurisdiction the seizure was made for an order extending the period during which it may be detained.

• Marginal note:Notice

  (2) The notice shall be served by personal service at least five clear days before the day on which the application is to be made, or by registered mail at least seven clear days before that day, and shall specify

  • (a) the provincial court in which the application is to be made;

  • (b) the place where and the time when the application is to be heard;

  • (c) the thing seized in respect of which the application is to be made; and

  • (d) the grounds on which the Minister intends to rely to show why there should be an extension of the period during which the thing seized may be detained.

• Marginal note:Order of extension granted

  (3) If, on the hearing of an application made under subsection (1), the judge is satisfied that the thing seized should continue to be detained, the judge shall order

  • (a) that the thing be detained for any additional period and on any conditions relating to the detention for that additional period that the judge considers proper; and

  • (b) on the expiry of the additional period, that the thing be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of the additional period, an event referred to in subparagraph 35(4)(b)(i), (ii) or (iii) has occurred.

• Marginal note:Order of extension refused

  (4) If, on the hearing of an application made under subsection (1), the judge is not satisfied that the thing seized should continue to be detained, the judge shall order that, on the expiry of 90 days after the day of its seizure, it be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of that period, an event referred to in subparagraph 35(4)(b)(i) or (ii) has occurred.

Detention of Canadian Vessels

Marginal note:Detention

• 37. (1) If an enforcement officer has reasonable grounds to believe that

  • (a) a Canadian vessel has committed an offence under this Act, or

  • (b) an authorized representative or master of a Canadian vessel has committed an offence under this Act and that a Canadian vessel was used in connection with the commission of the offence,

  the enforcement officer may make a detention order in respect of the vessel.

• Marginal note:Order in writing

  (2) The detention order shall be in writing and be addressed to all persons at any port in Canada where the vessel to which the order relates is or will be who are empowered to give a clearance in respect of the vessel.

• Marginal note:Notice of detention order

  (3) Notice of the detention order shall be served on the master of the vessel in respect of which the order is made.

• Marginal note:Duty of authorized representative or master

  (4) If the notice has been served on the master of the vessel, the authorized representative or master of the vessel shall not give an order for the vessel to go into an area of the sea referred to in paragraph 122(2)(f) or (g) of the Canadian Environmental Protection Act, 1999 during the term of the detention order.

• Marginal note:Duty of persons empowered to give clearance

  (5) Subject to subsection (6), no person to whom a detention order is addressed shall, after notice of the order is received by the person, give clearance in respect of the vessel to which the order relates.

• Marginal note:When clearance given

  (6) A person to whom a detention order is addressed and who has received notice of the order may give clearance in respect of the vessel to which the order relates if

  • (a) the authorized representative or master of the vessel

    • (i) has not, within 30 days after the day on which the order was made, been charged with the offence that gave rise to the order, or

    • (ii) has, within 30 days after the day on which the order was made, been charged with that offence and appears in Canada to answer to the charge;

  • (b) security for payment of the maximum fine that might be imposed as a result of a conviction of the person charged with that offence and of costs related to proceedings in connection with the charge, or security for payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or

  • (c) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued.