An Act to amend the Transportation of Dangerous Goods Act, 1992 (S.C. 2009, c. 9)
Full Document:
Assented to 2009-05-14
21. Subsection 22(3) of the French version of the Act is replaced by the following:
Marginal note:Présomption
(3) Le défendeur qui se livre à une activité visée par la présente loi est présumé, lors d’une action intentée en vertu du présent article, coupable de faute ou de négligence, sauf s’il établit, par prépondérance des probabilités, que lui-même et les personnes dont il est légalement responsable ont pris toutes les précautions voulues pour se conformer à la présente loi et à ses règlements.
22. Subsection 23(1) of the Act is replaced by the following:
Marginal note:Notice for disclosure of information
23. (1) The Minister may, by registered mail, send a written notice to any manufacturer, producer, distributor or importer of any product, substance or organism requesting the disclosure of information relating to its formula, composition or chemical ingredients and any similar information that the Minister considers necessary for the administration or enforcement of this Act.
23. (1) Subsection 24(1) of the Act is amended by striking out the word “and” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(b) information in a record of a communication between any person and the Canadian Transport Emergency Centre of the Department of Transport relating to an actual or anticipated release of dangerous goods; and
(c) information relating to security that is obtained under paragraph 15(2)(d).
Marginal note:1994, c. 26, s. 71(F)
(2) Subsection 24(4) of the Act is replaced by the following:
Marginal note:Disclosure
(4) No person shall knowingly communicate privileged information or allow it to be communicated to any person, or allow any other person to have access to the information, except
(a) with the written consent of the person from whom the information was obtained under section 15 or who disclosed the information under section 23 or in a record of a communication referred to in paragraph (1)(b);
(b) for the purposes of the administration or enforcement of this Act, in the case of information obtained under section 15 or disclosed under section 23; or
(c) to an inspector for the purposes of emergency response analysis or training of inspectors, in the case of information obtained in a record of a communication referred to in paragraph (1)(b).
24. The heading before section 27 of the Act is replaced by the following:
REGULATIONS, MEASURES AND ORDERS
25. (1) Paragraph 27(1)(b) of the French version of the Act is replaced by the following:
b) déterminer des divisions, subdivisions et groupes pour les marchandises dangereuses ou pour chacune des classes de marchandises dangereuses;
(2) Paragraphs 27(1)(e) to (u) of the Act are replaced by the following:
(e) exempting from the application of this Act and the regulations, or any of their provisions, the importing, offering for transport, handling or transporting of dangerous goods;
(f) respecting, for the purposes of paragraph (e), any quantities or concentrations of dangerous goods or ranges of them, respecting the manner of determining those quantities, concentrations or ranges and respecting any circumstances or conditions — including circumstances or conditions regarding premises, facilities or means of containment — under which an activity is exempted under paragraph (e);
(g) respecting circumstances in which any activity or thing is under the sole direction or control of the Minister of National Defence;
(h) respecting circumstances in which dangerous goods must not be imported, offered for transport, handled or transported;
(i) specifying dangerous goods that must not be imported, offered for transport, handled or transported in any circumstances;
(j) respecting safety marks, safety requirements and safety standards of general or particular application;
(j.1) requiring safety management systems to be established by prescribed persons or classes of persons with respect to specified quantities or concentrations of dangerous goods or ranges of them, specifying those quantities, concentrations or ranges, respecting the manner of determining those quantities, concentrations or ranges and respecting the content or requirements of those systems;
(j.2) respecting, in respect of particular dangerous goods, or classes, divisions, subdivisions and groups of dangerous goods, the means of containment to be used in importing, offering for transport, handling or transporting those goods;
(k) specifying quantities or concentrations of dangerous goods, or ranges of them, in relation to which emergency response assistance plans are required to be approved under section 7, and respecting the manner of determining those quantities, concentrations or ranges;
(k.1) respecting the information to be provided in an application for approval of the emergency response assistance plan referred to in section 7;
(k.2) respecting compensation of persons under section 7.2, and specifying the expenses that are authorized to be compensated;
(l) respecting the manner in which records are to be kept under section 9, the information to be included in them and the notices to be issued under that section;
(m) respecting the issuance of notices under section 9, and the contents of those notices;
(n) respecting shipping records and other documents to be used in offering for transport, handling or transporting dangerous goods, the information to be included in those documents and the persons by whom and the manner in which they are to be used and kept;
(o) respecting the qualification, training and examination of inspectors, prescribing the forms of the certificates described in sections 10 and 16.1 and respecting the manner in which inspectors are to carry out their duties and functions under this Act;
(p) respecting levels of financial responsibility required under subsection 14(1) in respect of any activity referred to in that subsection, and the nature and form of proof that may be requested under subsection 14(2);
(p.1) respecting the authorization of qualified persons referred to in subsection 15(3) and the manner in which they may exercise powers set out in subsection 15(2);
(q) specifying quantities or concentrations of dangerous goods or ranges of them for the purposes of section 18, and respecting the manner of determining those quantities, concentrations or ranges;
(r) prescribing persons or classes of persons who are to receive reports under section 18, and respecting the manner of making the reports, the information to be included in them and the circumstances in which they are not required;
(r.1) respecting the information to be provided in an application for a certificate under section 31;
(s) respecting the manner of applying for, issuing and revoking approvals of emergency response assistance plans under section 7 or certificates under section 31 and providing for the appeal or review of a refusal to issue an approval or certificate or of a revocation of one;
(t) providing for the notification of persons directed to do anything under paragraph 7.1(a), subsection 9(2) or (3), section 17, paragraph 19(1)(a) or (b) or subsection 32(1), for the coming into effect, duration and appeal or review of those directions and for any other incidental matters;
(u) respecting the manner in which amounts are to be paid under paragraph 34(1)(d); and
(v) prescribing persons or classes of persons who are to be prescribed under this Act.
(3) The portion of subsection 27(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:References in regulations
(2) The regulations may refer to any document, in whole or in part, as it exists when the regulations are made and, for the purpose of providing for alternative ways of complying with this Act, may refer to any of the following documents as amended from time to time:
26. The Act is amended by adding the following after section 27:
Marginal note:Security regulations
27.1 (1) The Governor in Council may make regulations respecting the security of the importing, offering for transport, handling or transporting of dangerous goods, including regulations
(a) respecting the prevention of unlawful interference with the importing, offering for transport, handling or transporting of dangerous goods and the action that is to be taken if that interference occurs or is likely to occur;
(b) prescribing persons or classes of persons, specifying quantities or concentrations of dangerous goods or ranges of them, and respecting the manner of determining those quantities, concentrations or ranges, for the purposes of section 5.2;
(c) respecting the conditions that a person is to meet to receive a transportation security clearance;
(d) respecting the manner of applying for, issuing, suspending and revoking a transportation security clearance and providing for the appeal or review of a refusal to issue such a clearance or of a suspension or revocation of one;
(e) prescribing persons or classes of persons, respecting the contents and implementation of security plans, and specifying quantities or concentrations of dangerous goods or ranges of them, for the purposes of subsection 7.3(1);
(f) respecting security training, including its content and its implementation, and the measures described in subsection 7.3(2);
(g) requiring security management systems to be established by prescribed persons or classes of persons with respect to specified quantities or concentrations of dangerous goods or ranges of them, specifying those quantities, concentrations or ranges and respecting the content or requirements of those systems;
(h) establishing security requirements for equipment, systems and processes used in importing, offering for transport, handling or transporting dangerous goods, including means of transport tracking and identification protocols;
(i) respecting the provision to the Minister of security-related information;
(j) prescribing persons or classes of persons who are to receive reports under section 18, and respecting the manner of making the reports, the information to be included in them and the circumstances in which they are not required; and
(k) prescribing persons or classes of persons who are to be prescribed under this Act.
Marginal note:References in regulations
(2) The regulations may refer to any document, in whole or in part, as it exists when the regulations are made.
Marginal note:Security measures
27.2 (1) The Minister may make measures — referred to in this Act as security measures — respecting the security of the importing, offering for transport, handling or transporting of dangerous goods.
Marginal note:Restriction
(2) The Minister may make a security measure in relation to a particular matter only if
(a) a regulation could be made in relation to that matter under subsection 27.1(1); and
(b) the publication of the regulation would compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or would endanger public safety.
Marginal note:Review
(3) A security measure comes into force immediately when it is made, but the Minister shall review the security measure within two years after the day on which it is made and within every following two years to determine whether the disclosure of the particular matter that is the subject of the security measure would no longer compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or endanger public safety.
Marginal note:Suspension of s. 27.5(1) and repeal of security measure
(4) If the Minister is of the opinion that the disclosure of the particular matter that is the subject of a security measure would no longer compromise the security of the importing, offering for transport, handling or transporting of dangerous goods or endanger public safety, the Minister shall
(a) within 23 days after the day on which the Minister forms that opinion, publish in the Canada Gazette a notice that sets out the substance of the security measure and states that subsection 27.5(1) no longer applies in respect of the security measure; and
(b) repeal the security measure before the earlier of
(i) the day that is one year after the day on which the notice is published, and
(ii) the day on which a regulation is made under subsection 27.1(1) in respect of the matter dealt with by the security measure.
Marginal note:Effect of notice
(5) If a notice is published under paragraph (4)(a), subsection 27.5(1) ceases to apply in respect of the security measure as of the day the notice is published.
Marginal note:Consultation
(6) Before making a security measure, the Minister shall consult with any person or organization that the Minister considers appropriate in the circumstances.
Marginal note:Exception
(7) Subsection (6) does not apply if, in the opinion of the Minister, the security measure is immediately required for the security of the importing, offering for transport, handling or transporting of dangerous goods or for public safety.
Marginal note:Deputy may make security measures
27.3 (1) The Minister may authorize his or her deputy to make, subject to any restrictions or conditions that the Minister specifies, security measures whenever the deputy is of the opinion that the measures are immediately required for public safety, provided that the conditions in paragraphs 27.2(2)(a) and (b) are met.
Marginal note:Duration
(2) The security measure comes into force immediately when it is made but ceases to have force 90 days after the day on which it is made unless the Minister or his or her deputy repeals it earlier.
Marginal note:Relationship with regulations
27.4 (1) A security measure may provide that it applies in lieu of or in addition to any regulation under subsection 27.1(1).
Marginal note:Conflict
(2) If there is a conflict between a regulation under subsection 27.1(1) and a security measure, the security measure prevails to the extent of the conflict.
Marginal note:Unauthorized disclosure — security measures
27.5 (1) Unless the Minister states under subsection 27.2(4) that this subsection does not apply in respect of a security measure, no person other than the person who made the security measure shall disclose its substance to any other person unless the disclosure is required by law or is necessary to give the security measure effect.
Marginal note:Court to inform Minister
(2) If, in any proceedings before a court or other body having jurisdiction to compel the production or discovery of information, a request is made for the production or discovery of any security measure, the court or other body shall, if the Minister is not a party to the proceedings, cause a notice of the request to be given to the Minister, and, in camera, examine the security measure and give the Minister a reasonable opportunity to make representations with respect to it.
Marginal note:Order
(3) If the court or other body concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the public interest in the security of the importing, offering for transport, handling or transporting of dangerous goods, the court or other body shall order the production or discovery of the security measure, subject to any restrictions or conditions that it considers appropriate, and may require any person to give evidence that relates to the security measure.
Marginal note:Interim orders
27.6 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation under subsection 27.1(1) if the Minister believes that immediate action is required to deal with an immediate threat to the security of the importing, offering for transport, handling or transporting of dangerous goods or to public safety.
Marginal note:Deputy may make interim orders
(2) The Minister may authorize his or her deputy to make, subject to any restrictions or conditions that the Minister specifies, an interim order whenever the deputy believes that immediate action is required to deal with an immediate threat to the security of the importing, offering for transport, handling or transporting of dangerous goods or to public safety.
Marginal note:Duration
(3) An interim order comes into force immediately when it is made but ceases to have effect on the earliest of
(a) the day that is 14 days after the day on which it is made, unless it is approved by the Governor in Council,
(b) the day on which it is repealed,
(c) the day on which a regulation made under subsection 27.1(1) that has the same effect as the interim order comes into force, and
(d) the day that is two years after the day on which the interim order is made or that is at the end of any shorter period that the interim order specifies.
Marginal note:Publication
(4) An interim order shall be published in the Canada Gazette within 23 days after the day on which it is made.
Marginal note:Tabling of order
(5) A copy of each interim order shall be tabled in each House of Parliament within 15 days after the day on which it is made.
Marginal note:House not sitting
(6) In order to comply with subsection (5), the interim order may be sent to the Clerk of the House if the House is not sitting.
Marginal note:Exemption from Statutory Instruments Act
27.7 (1) Security measures and interim orders are not statutory instruments for the purposes of the Statutory Instruments Act.
Marginal note:Precondition for contravention
(2) No person shall be found to have contravened any security measure, or any interim order that has not been published in the Canada Gazette under subsection 27.6(4) at the time of the alleged contravention, unless it is proved that, at the time of the alleged contravention, the person had been notified of the security measure or interim order or reasonable steps had been taken to bring its purport to the notice of those persons likely to be affected by it.
Marginal note:Certificate
(3) A certificate purporting to be signed by the Minister or the Secretary of the Department of Transport and stating that a notice containing the security measure or interim order was given to persons likely to be affected by it or that reasonable steps had been taken to bring its purport to their notice is, in the absence of evidence to the contrary, proof that notice was given to those persons.
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