Jobs, Growth and Long-term Prosperity Act (S.C. 2012, c. 19)
Full Document:
Assented to 2012-06-29
Marginal note:R.S., c. 31 (1st Supp.), s. 34; 2001, c. 26, s. 300
145. (1) Subsections 38(1) to (10) of the Act are replaced by the following:
Marginal note:Power to designate
38. (1) The Minister may designate persons or classes of persons as inspectors or analysts for the purposes of the administration and enforcement of this Act.
Marginal note:Certificate to be produced
(2) The Minister shall provide every inspector with a certificate of designation and on entering any place or premises referred to in subsection (3) an inspector shall, if so required, show the certificate to the person in charge.
Marginal note:Authority to enter
(3) An inspector may, for a purpose related to verifying compliance with this Act, enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the inspector believes on reasonable grounds that
(a) there is anything that is detrimental to fish habitat; or
(b) there has been carried on, is being carried on or is likely to be carried on any work, undertaking or activity resulting or likely to result in
(i) the alteration or disruption of fish habitat, or
(ii) the deposit of a substance in water frequented by fish or in any place under any conditions where the substance or any other substance that results from the deposit of the substance may enter any such water.
Marginal note:Powers on entry
(3.1) The inspector may, for a purpose related to verifying compliance with this Act, examine any substance or product in the place or premises, take samples of it and conduct tests and measurements.
Marginal note:Duty to notify — alteration, disruption, destruction
(4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of a harmful alteration or disruption or a destruction of fish habitat that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the alteration, disruption or destruction of fish habitat or the danger of the alteration, disruption or destruction; or
(b) causes or contributes to the occurrence or the danger of the occurrence.
Marginal note:Duty to notify — deleterious substance
(5) If there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence, then every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations if the person at any material time
(a) owns or has the charge, management or control of
(i) the deleterious substance, or
(ii) the work, undertaking or activity that resulted in the deposit or the danger of the deposit; or
(b) causes or contributes to the occurrence or the danger of the occurrence.
Marginal note:Duty to take corrective measures
(6) Any person described in paragraph (4)(a) or (b) or (5)(a) or (b) shall, as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.
Marginal note:Report
(7) As soon as feasible after the occurrence or after learning of the danger of the occurrence, the person shall provide an inspector, fishery officer or an authority prescribed by the regulations with a written report on the occurrence or danger of the occurrence.
Marginal note:Corrective measures
(7.1) If an inspector or fishery officer, whether or not they have been notified under subsection (4) or (5) or provided with a report under subsection (7), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (6), the inspector or officer may, subject to subsection (7.2), take any of those measures at the expense of any person described in paragraph (4)(a) or (b) or (5)(a) or (b) or direct such a person to take them at that person’s expense.
Marginal note:Inconsistency
(7.2) Any direction of an inspector or fishery officer under this section that is inconsistent with any direction under the Canada Shipping Act, 2001 is void to the extent of the inconsistency.
Marginal note:Access to property
(8) For the purposes of subsections (4) to (7.1), any inspector or other person may enter and have access through any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — and may take all reasonable measures in order to ensure that those subsections are complied with. However, nothing in this subsection relieves any person from liability at law for illegal or negligent acts or omissions or for loss or damage caused to others by the entry, access or measure.
Marginal note:Regulations
(9) The Governor in Council may make regulations prescribing
(a) the authority for the purposes of subsection (4) or (5), the manner in which the notification under those subsections is to be made, the information to be contained in the notification and the circumstances in which no notification need be made;
(b) the authority for the purposes of subsection (7), the manner in which the report under that subsection is to be made, the information to be contained in the report and the circumstances in which no report need be made;
(c) the manner in which inspectors and fishery officers may take any measures or give any directions under subsection (7.1) and the conditions to which those measures are subject;
(d) the manner and circumstances in which any measures taken or directions given under subsection (7.1) may be reviewed, rescinded or varied; and
(e) any other matters necessary for or incidental to carrying out the purposes and provisions of this section.
Marginal note:Assistance to inspectors
(10) The owner or person in charge of any place or premises entered by an inspector under subsection (3) and every person found there shall give the inspector all reasonable assistance to enable the inspector to carry out their duties and functions under this section and shall provide the inspector with any information with respect to verifying compliance with this Act that the inspector requires.
(2) Subparagraph 38(3)(b)(i) of the Act is replaced by the following:
(i) serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery,
(3) The portion of subsection 38(4) of the Act before paragraph (b) is replaced by the following:
Marginal note:Duty to notify — serious harm to fish
(4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of an occurrence that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or
(4) Paragraph 38(4)(b) of the French version of the Act is replaced by the following:
b) celle qui est à l’origine des dommages, ou y contribue.
146. The Act is amended by adding the following after section 38:
Marginal note:Search
39. (1) A fishery officer or inspector who has a warrant issued under subsection (2) in which the officer or inspector is named may enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the officer or inspector has reasonable grounds to believe that an offence under subsection 40(1), (2) or (3) is being or has been committed and search the place, premises, vehicle or vessel for evidence of the offence.
Marginal note:Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing any fishery officer or inspector named in the warrant to enter and search any place or premises referred to in subsection (1), subject to any conditions that are specified in the warrant, if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in the place or premises
(a) anything on or in respect of which an offence under subsection 40(1), (2) or (3) is being or has been committed; or
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under subsection 40(1), (2) or (3).
Marginal note:Use of force
(3) In executing a warrant issued under subsection (2), an inspector named in the warrant may use force only if they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
Marginal note:When warrant not necessary
(4) A fishery officer or inspector may exercise the powers of entry and search referred to in subsection (1) without a warrant issued under subsection (2) if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant.
Marginal note:Exigent circumstances
(5) For the purposes of subsection (4), exigent circumstances include circumstances in which the delay necessary to obtain a warrant would result in danger to human life or safety or the loss or destruction of evidence.
Marginal note:1991, c. 1, s. 10(1)
147. (1) The portion of subsection 40(1) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Offence and punishment
40. (1) Every person who contravenes subsection 35(1) is guilty of an offence and liable
Marginal note:1991, c. 1, s. 10(1)
(2) Paragraphs 40(1)(a) and (b) of the Act are replaced by the following:
(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, or to imprisonment for a term not exceeding three years, or to both,
(ii) in the case of a person, other than an individual or 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, or to imprisonment for a term not exceeding six months, or to both,
(ii) in the case of a person, other than an individual or 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.
Marginal note:1991, c. 1, s. 10(1)
(3) The portion of subsection 40(2) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Offence and punishment
(2) Every person who contravenes subsection 36(1) or (3) is guilty of an offence and liable
Marginal note:1991, c. 1, s. 10(1)
(4) Paragraphs 40(2)(a) and (b) of the Act are replaced by the following:
(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, or to imprisonment for a term not exceeding three years, or to both,
(ii) in the case of a person, other than an individual or 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, or to imprisonment for a term not exceeding six months, or to both,
(ii) in the case of a person, other than an individual or 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.
(5) Section 40 of the Act is amended by adding the following after subsection (2):
Marginal note:Small revenue corporation status
(2.1) For the purpose of subsections (1) and (2), 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 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Marginal note:Relief from minimum fine
(2.2) The court may impose a fine that is less than the minimum amount provided for in subsection (1) or (2) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in either of those subsections.
(6) Paragraph 40(3)(a) of the Act is replaced by the following:
(a) in carrying on a work, undertaking or activity, fails to comply with a prescribed condition of an authorization under paragraph 35(2)(a) or (c), with a condition established by the Minister under paragraph 35(2)(b), or with a condition set out in the regulations or established under any other authorization issued under this Act,
(a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) within a reasonable time after the request is made,
(7) Paragraph 40(3)(a.1) of the Act is replaced by the following:
(a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) or (1.1) within a reasonable time after the request is made,
(8) Paragraphs 40(3)(c) to (f) of the Act are replaced by the following:
(c) fails to provide notification that he or she is required to provide under subsection 38(4) or (5),
(d) carries on any work, undertaking or activity described in subsection 37(1)
(i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1),
(ii) otherwise than in accordance with any such material or information as required to be modified by any order of the Minister under paragraph 37(2)(a), or
(iii) contrary to any order made by the Minister under subsection 37(2),
(e) fails to take any reasonable measures that he or she is required to take under subsection 38(6) or fails to take those measures in the required manner,
(f) fails to provide a report that he or she is required to provide under subsection 38(7), or
(g) fails to comply with the whole or any part of a direction of an inspector or a fishery officer under subsection 38(7.1),
(9) The portion of paragraph 40(3)(d) of the Act before subparagraph (ii) is replaced by the following:
(d) carries on any work, undertaking or activity described in subsection 37(1) or (1.1)
(i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1) or (1.1),
(10) Subsection 40(3) of the Act is amended by striking out “or” at the end of paragraph (f), by adding “or” and the end of paragraph (g) and adding the following after paragraph (g):
(h) fails to comply with a request of the Minister made under section 20,
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