Marginal note:Abandoned vessel

20. If any vessel or thing is wrecked, sunk, partially sunk, lying ashore, grounded or abandoned in any navigable water — other than in any minor water — that is listed in the schedule, the Minister may, under the restrictions that he or she considers appropriate, authorize any person to take possession of and remove the vessel, part of the vessel or thing for that person’s own benefit, on that person’s giving to the registered owner or other owner of the vessel or to the owner of the thing, if known, one month’s notice or, if the registered owner or other owner of the vessel or owner of the thing is not known, public notice for the same period in a publication specified by the Minister.

DEPOSIT AND DEWATERING

Marginal note:Throwing or depositing stone, etc., prohibited

22. No person shall throw or deposit or cause, suffer or permit to be thrown or deposited any stone, gravel, earth, cinders, ashes or other material or rubbish that is liable to sink to the bottom in any water, any part of which is navigable or flows into any navigable water, where there is not a minimum depth of 36 metres of water at all times, but nothing in this section shall be construed so as to permit the throwing or depositing of any substance in any part of a navigable water if it is prohibited by or under any other federal Act.

Marginal note:Dewatering

23. No person shall dewater any navigable water.

Marginal note:Exemption by order

24. The Governor in Council may, by order, exempt from any of sections 21 to 23, any rivers, streams or waters, in whole or in part, if it is shown to the satisfaction of the Governor in Council that the exemption would be in the public interest.

Marginal note:Powers of certain persons

25. Sections 21, 22 and 26 do not affect the legal powers, rights or duties of harbour masters, port wardens, the person responsible for the management of the St. Lawrence Seaway or a port authority established under the Canada Marine Act in respect of materials that, under those sections, are not allowed to be deposited in navigable waters.

Marginal note:Dumping places

26. The Minister may designate places in any navigable water that is not within the jurisdiction of any person referred to in section 25, where stone, gravel, earth, cinders, ashes or other material may be deposited even if the minimum depth of water at that place may be less than 36 metres, and the Minister may make rules respecting the deposit of the materials.

AGREEMENTS AND ARRANGEMENTS

Marginal note:Agreements and arrangements

27. The Minister may, with respect to his or her responsibilities under this Act, enter into agreements or arrangements for carrying out the purposes of this Act and authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under this Act that are specified in the agreement or arrangement.

REGULATIONS, ORDERS, INCORPORATION BY REFERENCE AND INTERIM ORDERS

Regulations and Orders

Marginal note:Regulations by Governor in Council

• 28. (1) The Governor in Council may, for the purposes of this Act, make regulations

  • (a) respecting time limits for issuing approvals or for refusing to do so;

  • (b) prescribing fees, or the method of calculating fees, to be paid with the request referred to in section 4, to be paid for the assessment referred to in section 5, to be paid with the application referred to in section 6 and to be paid for any other service, right or privilege provided under this Act and respecting the payment of those fees;

  • (c) respecting the issuing, amendment, suspension and cancellation of approvals under section 6;

  • (d) respecting the water levels and water flow necessary for navigation;

  • (e) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any navigable waters — other than any minor waters — that are listed in the schedule;

  • (f) respecting the designation of areas contiguous with works that are necessary for the safety of persons and navigation;

  • (g) respecting notification requirements in the case of a change in owner of a work;

  • (h) excluding any thing from the definition “obstruction” in section 2;

  • (i) designating any provision of this Act, of the regulations or of an order as a provision whose contravention may be proceeded with as a violation in accordance with sections 39.1 to 39.26;

  • (j) establishing a penalty, or a range of penalties, in respect of each violation;

  • (k) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;

  • (l) classifying each violation as a minor violation, a serious violation or a very serious violation;

  • (m) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be increased or reduced in whole or in part;

  • (n) providing for a lesser amount that may be paid as complete satisfaction of a penalty if it is paid within the prescribed time and in the prescribed manner and providing, among other things, the circumstances in which the lesser amount may be set out in a notice of violation;

  • (o) prescribing anything that is to be prescribed under this Act; and

  • (p) for carrying out the purposes and provisions of this Act.

• Marginal note:Minister’s power

  (2) The Minister may make an order

  • (a) designating any works as minor works;

  • (b) designating, as minor waters, any of the navigable waters, in whole or in part, that are listed in the schedule;

  • (c) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any navigable waters — other than any minor waters — that are listed in the schedule; and

  • (d) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any minor waters.

• Marginal note:Classes

  (3) A regulation or order made under this section may establish classes and distinguish among those classes.

• Marginal note:Conflict

  (4) If there is a conflict between a regulation made under paragraph (1)(e) and an order made under paragraph (2)(c), the regulation prevails.

• Marginal note:Exemption from Statutory Instruments Act

  (5) An order made under subsection (2) is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act. However, it shall be published in the Canada Gazette within 23 days after the day on which it is made.

Definition of “local authority”

• 29. (1) For the purposes of this section, “local authority” means the government of a municipality, any other government constituted under the laws of a province or a department of a provincial government.

• Marginal note:Addition to schedule

  (2) The Governor in Council may, by regulation, amend the schedule by adding to it a reference to a navigable water if the Governor in Council is satisfied that the addition

  • (a) is in the national or regional economic interest;

  • (b) is in the public interest; or

  • (c) was requested by a local authority.

• Marginal note:Minister’s recommendation

  (3) The Minister may recommend the addition of a reference to a navigable water to the schedule at the request of a local authority only if the Minister is satisfied that the local authority meets the criteria specified by the Minister.

• Marginal note:Other amendment of schedule

  (4) The Governor in Council may, by regulation, amend the schedule by amending or deleting a reference to a navigable water.

Incorporation by Reference

Marginal note:Incorporation by reference

• 30. (1) A regulation or order made under this Act may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.

• Marginal note:Accessibility

  (2) The Minister shall ensure that any document that is incorporated by reference in the regulation or order is accessible.

• Marginal note:Defence

  (3) A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in the regulation or order is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.

• Marginal note:No registration or publication

  (4) For greater certainty, a document that is incorporated by reference in the regulation or order is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

ADMINISTRATION AND ENFORCEMENT

Designation

Marginal note:Designation

33. The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.

Marginal note:Obligation d’assistance

35. Le propriétaire ou le responsable du lieu visé au paragraphe 34(1), ainsi que toute personne qui s’y trouve, sont tenus :

Marginal note:Injunction

• 38. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence or a violation under this Act, the court may issue an injunction ordering a person named in the application

  • (a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the commission of the offence or the violation; or

  • (b) to do an act that, in the opinion of the court, may prevent the commission of the offence or the violation.

Administrative Monetary Penalties

Violations

Marginal note:Commission of violation

• 39.1 (1) Every person who contravenes a provision designated under paragraph 28(1)(i) commits a violation and is liable to a penalty established in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of a penalty is to promote compliance with this Act and not to punish.

• Marginal note:Maximum penalty

  (3) The maximum penalty for a violation is $5,000, in the case of an individual, and $40,000 in any other case.

Proceedings

Marginal note:Notice of violation

• 39.11 (1) A designated person may issue a notice of violation and cause it to be provided to a person if the designated person has reasonable grounds to believe that the person has committed a violation.

• Marginal note:Contents of notice

  (2) The notice of violation shall

  • (a) name the person believed to have committed the violation;

  • (b) identify the acts or omissions that constitute the alleged violation;

  • (c) set out the penalty for the violation that the person is liable to pay;

  • (d) set out the particulars concerning the time and manner of payment; and

  • (e) set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are specified in the notice.

• Marginal note:Summary of rights

  (3) A notice of violation shall summarize, in plain language, the rights and obligations under this section and sections 39.12 to 39.23 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.

• Marginal note:Short-form descriptions

  (4) The Minister may establish a short-form description of each violation to be used in notices of violation.

Penalties

Marginal note:Effect of payment

• 39.12 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are specified in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice,

  • (a) the person is deemed to have committed the violation to which the amount paid relates;

  • (b) the Minister shall accept the amount paid as complete satisfaction of the penalty; and

  • (c) the proceedings commenced in respect of the violation under section 39.11 are ended.

• Marginal note:Alternatives to payment

  (2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are specified in the notice, request a review by the Tribunal of the acts or omissions that constitute the alleged violation or of the amount of the penalty, as the case may be.

• Marginal note:Deeming

  (3) If the person who is named in the notice does not pay the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise the right referred to in subsection (2) within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice.

Review by Tribunal

Marginal note:Review — violation

• 39.13 (1) After completing a review requested under subsection 39.12(2) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Tribunal shall determine whether the person who is named in the notice committed the violation and, if the Tribunal determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.

• Marginal note:Review — penalty

  (2) After completing a review requested under subsection 39.12(2) with respect to the amount of the penalty set out in the notice of violation, the Tribunal shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Tribunal determines that it was not, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.

• Marginal note:Payment

  (3) The person who is provided with a notice of the Tribunal’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are specified in the notice.

• Marginal note:Effect of payment

  (4) If the person pays the amount of the penalty that is set out in the notice of the Tribunal’s decision within the prescribed time and in the prescribed manner that are specified in the notice,

  • (a) the Tribunal shall accept the amount as complete satisfaction of the penalty; and

  • (b) the proceedings commenced in respect of the violation under section 39.11 are ended.

Recovery of Debts

Marginal note:Debts to Her Majesty

• 39.14 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

  • (a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to have the Tribunal review the acts or omissions that constitute the violation or the amount of the penalty, as the case may be;

  • (b) the amount of a penalty set out in the notice of the Tribunal’s decision made under subsection 39.13(1) or (2), beginning on the day specified in the notice; and

  • (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).

• Marginal note:Limitation period or prescription

  (2) Proceedings to recover such a debt may be commenced no later than five years after the debt becomes payable.

• Marginal note:Debt final

  (3) The debt is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 39.12 and 39.13.

Marginal note:Certificate of default

• 39.15 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 39.14(1).

• Marginal note:Effect of registration

  (2) Registration of the certificate in the Federal Court has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

Rules of Law About Violations

Marginal note:Violations not offences

39.16 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Due diligence defence

• 39.17 (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Burden of proof

39.18 If the Tribunal is to determine whether a person who is named in a notice of violation committed any violation that is identified in it, the Tribunal shall do so on a balance of probabilities.

Marginal note:Offences by corporate officers, etc.

39.19 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors and agents or mandataries who directed, authorized, assented to or acquiesced or participated in the commission of the violation is a party to and liable for the violation, whether or not the person who actually committed it is proceeded against in accordance with this Act.

Marginal note:Vicarious liability — acts of employees, agents and mandataries

39.2 A person is liable for a violation that is committed by that person’s employee or agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.

Marginal note:Continuing violation

39.21 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.

Other Provisions

Marginal note:Evidence

39.22 In any proceeding for a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Limitation period or prescription

39.23 Proceedings in respect of a violation may be commenced no later than six months after the day on which a designated person becomes aware of the acts or omissions that constitute the alleged violation.

Marginal note:Certification by Minister

39.24 A document appearing to have been issued by the Minister and certifying the day on which the acts or omissions that constitute the alleged violation became known to a designated person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the designated person became aware of the acts or omissions on that day.

Marginal note:Information may be made public

39.25 The Minister may make public the name and business address of a person who is deemed to have committed a violation or who was determined to have committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.

Marginal note:How act or omission may be proceeded with

39.26 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.