An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence (S.C. 2008, c. 21)
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Assented to 2008-06-18
47. Section 101 of the Act is replaced by the following:
Marginal note:Navigable Waters Protection Act
101. The Navigable Waters Protection Act does not apply to a work, within the meaning of that Act, that has been exempted by a regulation made under section 98.
48. Subsection 107(1) of the French version of the Act is replaced by the following:
Marginal note:Navires
107. (1) Les droits et les intérêts fixés sous le régime de la présente loi à l’égard des navires ou des marchandises doivent être acquittés par le propriétaire ou le responsable du navire ou le propriétaire des marchandises sans préjudice des recours ouverts en droit contre d’autres personnes.
49. Paragraph 115(1)(a) of the Act is replaced by the following:
(a) that the ship or the owner or person in charge of the ship or goods has, in respect of the ship or goods, contravened any provision of this Act or the regulations;
50. (1) Paragraph 116(4)(a) of the Act is replaced by the following:
(a) security in the amount of $100,000 has been given to, and has been determined satisfactory by, the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be;
(a.1) the ship has not been charged with an offence under this Act within 30 days after the making of the detention order;
(2) The portion of paragraph 116(4)(b) of the French version of the Act before subparagraph (i) is replaced by the following:
b) le navire a été accusé d’une infraction à la présente loi dans le délai mentionné à l’alinéa a.1) et :
(3) Subparagraph 116(4)(b)(i) of the Act is replaced by the following:
(i) security satisfactory to the Minister of not more than $5,000 is given to Her Majesty in right of Canada, or
51. (1) Paragraph 117(1)(d) of the Act is replaced by the following:
(d) the security referred to in paragraph 116(4)(a) or (b) has not been given.
(2) Paragraph 117(2)(d) of the Act is replaced by the following:
(d) the security referred to in paragraph 116(4)(a) or (c) has not been given.
(3) Paragraph 117(3)(d) of the Act is replaced by the following:
(d) the security referred to in paragraph 116(4)(a) or (d) has not been given.
52. Section 121 of the French version of the Act is replaced by the following:
Marginal note:Vente de marchandises périssables
121. S’il estime que des marchandises saisies et retenues conformément à la présente loi ou qui ont été abandonnées risquent de se détériorer, l’agent de l’autorité peut en disposer, notamment par vente, selon les modalités et aux prix justifiés par les circonstances. Le produit de la disposition est affecté au paiement des frais qu’elle a occasionnés, ainsi qu’à l’acquittement des sommes dues à l’égard du navire ou des marchandises.
Marginal note:2001, c. 26, s. 279
53. The portion of subsection 122(1) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Privilèges — navires
122. (1) L’administration portuaire, le ministre ou la personne qui a conclu une entente en vertu du paragraphe 80(5) est toujours titulaire d’un privilège sur le navire et sur le produit de toute disposition qui en est faite, pour sa créance; ce privilège a priorité sur tous autres droits et créances, quelle qu’en soit la nature, à la seule exception des créances salariales des membres de l’équipage, visées par la Loi de 2001 sur la marine marchande du Canada, dans les cas suivants :
54. Subsections 127(1) and (2) of the Act are replaced by the following:
Marginal note:Offence and fine
127. (1) A person or ship that contravenes a provision of this Act, except section 107, or of the regulations made under paragraph 27(1)(a), or of the regulations made under this Act for which no penalty is otherwise provided is guilty of an offence and liable to a fine of not more than $5,000 in the case of an individual, and of not more than $50,000 in the case of a corporation or ship.
Marginal note:Proof of offence by ship
(1.1) If a ship is prosecuted for an offence under a provision of this Act, except section 107, or of the regulations, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by the master of the ship or any person on board the ship, whether or not the person on board has been identified.
Marginal note:By-laws
(1.2) No person is guilty of an offence under this Act for a contravention of a by-law made under section 30.
Marginal note:Defence
(2) No person or ship shall be found guilty of an offence under this Act if the person or ship establishes that the person or ship exercised due diligence to prevent its commission.
55. Subsection 128(1) of the English version of the Act is replaced by the following:
Marginal note:Separate offence
128. (1) When an offence under this Act is committed by a person or ship on more than one day or is continued by a person or ship for more than one day, it is deemed to be a separate offence for each day on which it is committed or continued.
56. Subsection 129(1) of the Act is replaced by the following:
Marginal note:Order to comply
129. (1) If a person or ship is guilty of an offence under Part 1 or the regulations made under paragraph 27(1)(a), a court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order the person or ship to comply with those provisions for the contravention of which the person or ship is convicted.
57. The Act is amended by adding the following after section 129:
Administrative Monetary Penalties
Definition of “Appeal Tribunal”
129.01 For the purposes of sections 129.06, 129.08 and 129.1 to 129.13, “Appeal Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
Marginal note:Violations
129.02 Every person or ship that contravenes a provision or instruction designated under paragraph 129.03(a) commits a violation and is liable to an administrative monetary penalty not exceeding the maximum established by regulation.
Marginal note:Regulations
129.03 The Governor in Council may make regulations
(a) designating any of the following as a provision or instruction whose contravention may be proceeded with as a violation, namely,
(i) any provision of this Act, other than paragraphs 59(1)(d) and 126(b),
(ii) any provision of the regulations, or
(iii) any instruction that may be given under the regulations;
(b) establishing the maximum administrative monetary penalty for a particular violation, which may not exceed $5,000 in the case of an individual and $25,000 in the case of a corporation or ship;
(c) establishing criteria to be taken into account in determining the penalty;
(d) designating provisions or instructions the contravention of which, if continued on more than one day, constitutes a separate violation in respect of each day during which the violation is continued;
(e) respecting the service of the notice that is required to be served under subsection 129.05(1), including the manner and proof of service and the circumstances under which the notice is deemed to be served; and
(f) generally, for carrying out the purposes and provisions of this section and sections 129.04 to 129.17.
Marginal note:Criteria for penalty
129.04 The administrative monetary penalty imposed is, in each case, to be determined taking into account
(a) the purpose of the penalty, which is to promote compliance with this Act and not to punish;
(b) the seriousness of the violation, including the frequency and duration of the conduct;
(c) the history of the person or ship that has been served with the notice of violation with respect to any prior violation or conviction under this Act within the five-year period immediately before the violation; and
(d) any other criteria established under paragraph 129.03(c).
Marginal note:Notice of violation
129.05 (1) If an enforcement officer believes on reasonable grounds that a person or ship has committed a violation, the officer may issue, and shall cause to be served on the person or ship, a notice of violation.
Marginal note:Content of notice
(2) The Minister may establish the form and content of notices of violation, but each notice of violation shall
(a) name the person or ship believed to have committed the violation;
(b) identify the violation;
(c) set out the administrative monetary penalty that the person or ship is liable to pay;
(d) set out the particulars concerning the time for and manner of paying the penalty and the time for and manner of requesting a review; and
(e) inform the person or ship that, if they do not pay the penalty or request a review in accordance with the particulars set out in the notice, they will be deemed to have committed the violation and the penalty set out in the notice will be imposed.
Marginal note:Option
129.06 A person or ship that has been served with a notice of violation shall either pay the penalty set out in the notice or file with the Appeal Tribunal a written request for a review of the facts of the alleged violation or of the amount of the penalty.
Marginal note:Payment of penalty
129.07 If the person or ship pays the penalty in accordance with the particulars set out in the notice of violation, the person or ship is deemed to have committed the violation and proceedings in respect of the violation are ended.
Marginal note:Request for review
129.08 (1) A request for a review shall be filed with the Appeal Tribunal at the address set out in the notice of violation on or before the date specified in the notice or within any further time that the Appeal Tribunal, on application, may allow.
Marginal note:Time and place for review
(2) On receipt of the request, the Appeal Tribunal shall appoint a time and place for the review and shall so notify, in writing, the Minister and the person or ship that filed the request.
Marginal note:Review procedure
(3) The member of the Appeal Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship that filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Burden of proof
(4) The burden of establishing that a person or ship has committed the violation identified in the notice is on the Minister.
Marginal note:Person or ship not compelled to testify
(5) A person or ship that is alleged to have committed a violation is not required, and may not be compelled, to give any evidence or testimony in the matter.
Marginal note:Failure to pay penalty or request review
129.09 A person or ship that neither pays the penalty nor files a request for a review in accordance with the particulars set out in the notice of violation is deemed to have committed the violation.
Marginal note:Determination by Appeal Tribunal member
129.1 (1) At the conclusion of a review under section 129.08, the member of the Appeal Tribunal who conducts the review shall without delay inform the person or ship and the Minister of the member’s determination on the review.
Marginal note:No violation
(2) If the member determines that the person or ship has not committed the alleged violation, then, subject to section 129.11, no further proceedings may be taken against the person or ship in respect of the alleged violation.
Marginal note:Violation
(3) If the member determines that the person or ship has committed the alleged violation, then the member shall also inform the person or ship and the Minister of the administrative monetary penalty determined by the member to be payable in respect of the violation.
Marginal note:Right of appeal
129.11 (1) The Minister or a person or ship affected by a determination made under section 129.1 may, within 30 days after the determination, appeal it to the Appeal Tribunal.
Marginal note:Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Marginal note:Disposition of appeal
(3) The appeal panel of the Appeal Tribunal that is assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.
Marginal note:Obligation to inform
(4) If the appeal panel finds that a person or ship has committed the alleged violation, the panel shall without delay inform the person or ship of the finding and of the administrative monetary penalty determined by the panel to be payable in respect of the violation.
Marginal note:Debts due to Her Majesty
129.12 The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:
(a) unless a review of the facts of the alleged violation or the amount of the penalty is requested in accordance with the particulars set out in the notice of violation, the amount of a penalty set out in the notice, beginning on the day on which the notice was served;
(b) the amount of a penalty determined by a member of the Appeal Tribunal under section 129.1 or decided by the appeal panel of the Appeal Tribunal under section 129.11, beginning on the day on which the respective determination or decision was made; and
(c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).
Marginal note:Certificate
129.13 (1) All or part of a debt referred to in section 129.12 in respect of which there is a default of payment may be certified by the Appeal Tribunal at the request of the Minister.
Marginal note:Judgments
(2) On production in any superior court, a certificate made under subsection (1) is to be registered in that court and, when registered, has the same force and effect, and all proceedings may be taken on it, as if it were a judgment obtained in that court for a debt of the amount specified in it and all reasonable costs and charges attendant in its registration.
Marginal note:Directors and officers of corporations
129.14 If a corporation commits a violation, every person who at the time of the commission of the violation was a director or officer of the corporation is a party to and liable for the violation unless the act or omission constituting the violation took place without the person’s knowledge or consent or the person exercised due diligence to prevent the commission of the violation.
Marginal note:Vicarious liability — acts of employees, agents and mandataries
129.15 A person or ship is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against, unless the person or ship establishes that the violation was committed without the person’s or ship’s knowledge or consent.
Marginal note:Violations not offences
129.16 For greater certainty, a violation is not an offence. Accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Due diligence available
129.17 Due diligence is a defence in a proceeding in respect of a violation.
General Provisions
Marginal note:How act or omission may be proceeded with
129.18 If an act or an omission can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
Marginal note:Time limit
129.19 (1) No proceedings in respect of a violation or a prosecution for an offence may be commenced later than one year after the subject-matter of the proceedings became known to the Minister.
Marginal note:Certification by Minister
(2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter of any proceedings became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof that the Minister became aware of the subject-matter on that day.
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