An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts (S.C. 2017, c. 7)
Full Document:
Assented to 2017-05-18
1996, c. 19Controlled Drugs and Substances Act (continued)
Marginal note:2015, c. 22, s. 2
25 Subsection 30(2) of the Act is replaced by the following :
Marginal note:Certificate
(2) Every inspector shall be provided with a certificate of designation in a form established by the Minister and, on entering any place under subsection 31(1), shall, on request, produce the certificate to the person in charge of the place.
26 (1) The portion of subsection 31(1) of the Act before paragraph (b) is replaced by the following :
Marginal note:Powers of inspector
31 (1) Subject to subsection (2), an inspector may, for a purpose related to verifying compliance or preventing non-compliance with the provisions of this Act or the regulations, enter any place, including a conveyance, referred to in subsection (1.1) and may for that purpose
(a) open and examine any receptacle or package found in that place in which a controlled substance, precursor or designated device may be found;
(2) Paragraph 31(1)(b) of the French version of the Act is replaced by the following :
b) examiner toute chose trouvée sur les lieux et servant — ou susceptible de servir — à la production, à la conservation, à l’emballage ou à l’entreposage d’une substance désignée ou d’un précurseur;
(3) Paragraph 31(1)(c) of the Act is replaced by the following :
(c) examine any labels or advertising material or records, books, electronic data or other documents found in that place with respect to any controlled substance, precursor, or designated device other than the records of the medical condition of persons, and make copies thereof or take extracts therefrom;
(4) Subsection 31(1) of the Act is amended by adding the following after paragraph (g):
(g.1) take photographs and make recordings and sketches;
(5) Subsection 31(1) of the Act is amended by striking out “and” at the end of paragraph (h) and by replacing paragraph (i) with the following :
(i) seize and detain, in accordance with this Part, any controlled substance, precursor, designated device or conveyance found in that place the seizure and detention of which the inspector believes on reasonable grounds are necessary;
(j) order the owner or person having possession, care or control of any controlled substance, precursor, designated device or other thing to which the provisions of this Act or the regulations apply that is found in that place to move it or, for any time that may be necessary, not to move it or to restrict its movement;
(k) order the owner or person having possession, care or control of any conveyance that is found in that place and that the inspector believes on reasonable grounds contains a controlled substance, precursor or designated device to stop the conveyance, to move it or, for any time that may be necessary, not to move it or to restrict its movement;
(l) order any person in that place to establish their identity to the inspector’s satisfaction; and
(m) order a person who, at that place, conducts an activity to which the provisions of this Act or the regulations apply to stop or start the activity.
Marginal note:2015, c. 22, s. 3(1), (2)(E) and (3)
(6) Subsections 31(1.1) to (3) of the Act are replaced by the following :
Marginal note:Place
(1.1) For the purposes of subsection (1), the inspector may only enter a place in which they believe on reasonable grounds
(a) a controlled substance, precursor, designated device or document relating to the administration of this Act or the regulations is located;
(b) an activity could be conducted under a licence, permit, authorization or exemption that is under consideration by the Minister;
(c) an activity to which the provisions of this Act or the regulations apply is being conducted; or
(d) an activity was being conducted under a licence, permit, authorization or exemption before the expiry or revocation of the licence, permit, authorization or exemption, in which case the inspector may enter the place only within 45 days after the day on which it expired or was revoked.
Marginal note:Means of telecommunication
(1.2) For the purposes of subsections (1) and (1.1), an inspector is considered to have entered a place when they access it remotely by a means of telecommunication.
Marginal note:Limitation — access by means of telecommunication
(1.3) An inspector who enters remotely, by a means of telecommunication, a place that is not accessible to the public must do so with the knowledge of the owner or person in charge of the place and only for the period necessary for any purpose referred to in subsection (1).
Marginal note:Person accompanying inspector
(1.4) An inspector may be accompanied by any other person that the inspector believes is necessary to help them exercise their powers or perform their duties or functions under this section.
Marginal note:Entering private property
(1.5) An inspector and any person accompanying them may enter and pass through private property, other than a dwelling-house on that property, in order to gain entry to a place referred to in subsection (1.1).
Marginal note:Warrant to enter dwelling-house
(2) In the case of a dwelling-house, an inspector may enter it only with the consent of an occupant or under the authority of a warrant issued under subsection (3).
Marginal note:Authority to issue warrant
(3) A justice may, on ex parte application, issue a warrant authorizing the inspector named in it to enter a place and exercise any of the powers mentioned in paragraphs (1)(a) to (m), subject to any conditions that are specified in the warrant, if the justice is satisfied by information on oath that
(a) the place is a dwelling-house but otherwise meets the conditions for entry described in subsections (1) and (1.1);
(b) entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance with the provisions of this Act or the regulations; and
(c) entry to the dwelling-house has been refused or there are reasonable grounds to believe that entry will be refused.
Marginal note:2015, c. 22, s. 3(4)(E)
(7) Subsections 31(5) to (9) of the Act are replaced by the following :
Marginal note:Assistance to inspector
(5) The owner or other person in charge of a place entered by an inspector and every person found there shall give the inspector all reasonable assistance in that person’s power and provide the inspector with any information that the inspector may reasonably require.
Marginal note:Storage
(6) Anything that is seized and detained by an inspector under this section may, at the inspector’s discretion, be kept or stored at the place where it was seized or, at the inspector’s direction, be removed to any other proper place.
Marginal note:Notice
(7) An inspector who seizes anything under this section shall take any measures that are reasonable in the circumstances to give to the owner or other person in charge of the place where the seizure occurred notice of the seizure and of the location where the thing is being kept or stored.
Marginal note:Return by inspector
(8) If an inspector determines that to verify compliance or prevent non-compliance with the provisions of this Act or the regulations it is no longer necessary to detain anything seized by the inspector under this section, the inspector shall notify in writing the owner or other person in charge of the place where the seizure occurred of that determination and, on being issued a receipt for it, shall return the thing to that person.
Marginal note:Return or disposition by Minister
(9) Despite sections 24, 25 and 27, if a period of 120 days has elapsed after the date of a seizure under this section and the thing has not been returned in accordance with subsection (8), it shall be returned, disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
(8) Subsection 31(9) of the Act is replaced by the following :
Marginal note:Return or disposition by Minister
(9) If a period of 120 days has elapsed after the date of a seizure under this section and the thing has not been returned, disposed of or otherwise dealt with in accordance with subsection (8) or any of sections 24 to 27, it shall be returned, disposed of or otherwise dealt with in accordance with the regulations or, if there are no applicable regulations, in the manner that the Minister directs.
27 (1) Subsection 32(1) of the Act is replaced by the following :
Marginal note:Obstructing inspector
32 (1) No person shall, by act or omission, obstruct an inspector who is engaged in the exercise of their powers or the performance of their duties or functions under this Act or the regulations.
(2) Subsection 32(2) of the English version of the Act is replaced by the following :
Marginal note:False statements
(2) No person shall knowingly make any false or misleading statement verbally or in writing to an inspector who is engaged in the exercise of their powers or the performance of their duties or functions under this Act or the regulations.
(3) Subsection 32(3) of the French version of the Act is replaced by the following :
Marginal note:Interdiction
(3) Il est interdit, sans l’autorisation de l’inspecteur, de déplacer les choses saisies, retenues ou emportées en application de l’article 31 ou d’en modifier l’état de quelque manière que ce soit.
28 Part V of the Act is replaced by the following :
PART VAdministrative Monetary Penalties
Violation
Marginal note:Commission of violation
33 Every person who contravenes a provision designated by regulations made under paragraph 34(1)(a), or contravenes an order made under section 45.1 or 45.2 or reviewed under section 45.4, commits a violation and is liable to the penalty established in accordance with the provisions of this Act and the regulations.
Powers of the Governor in Council and the Minister
Marginal note:Regulations
34 (1) The Governor in Council may make regulations
(a) designating as a violation that may be proceeded with in accordance with this Act the contravention of any specified provision of this Act — except a provision of Part I — or the regulations;
(b) fixing a penalty, or a range of penalties, in respect of each violation;
(c) classifying each violation as a minor violation, a serious violation or a very serious violation; and
(d) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be increased or reduced, including a reduction in the amount that is provided for in a compliance agreement.
Marginal note:Maximum penalty
(2) The maximum penalty for a violation is $30,000.
Marginal note:Criteria for penalty
35 Unless a penalty is fixed under paragraph 34(1)(b), the amount of a penalty shall, in each case, be determined taking into account
(a) the history of compliance with the provisions of this Act or the regulations by the person who committed the violation;
(b) the harm to public health or safety that resulted or could have resulted from the violation;
(c) whether the person made reasonable efforts to mitigate or reverse the violation’s effects;
(d) whether the person derived any competitive or economic benefit from the violation; and
(e) any other prescribed criteria.
Marginal note:Notices of violation
36 The Minister may
(a) designate individuals, or classes of individuals, who are authorized to issue notices of violation; and
(b) establish, in respect of each violation, a short-form description to be used in notices of violation.
Proceedings
Marginal note:Issuance of notice of violation
37 (1) If a person who is designated under paragraph 36(a) believes on reasonable grounds that a person has committed a violation, the designated person may issue, and shall provide the person with, a notice of violation that
(a) sets out the person’s name;
(b) identifies the alleged violation;
(c) sets out the penalty for the violation that the person is liable to pay; and
(d) sets out the particulars concerning the time and manner of payment.
Marginal note:Summary of rights
(2) A notice of violation shall clearly summarize, in plain language, the named person’s rights and obligations under this section and sections 38 to 43.7, including the right to have the acts or omissions that constitute the alleged violation or the amount of the penalty reviewed and the procedure for requesting that review.
Penalties
Marginal note:Payment
38 (1) If the person named in the notice pays, in the prescribed time and manner, the amount of the penalty,
(a) they are deemed to have committed the violation in respect of which the amount is paid;
(b) the Minister shall accept that amount as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 37 are ended.
Marginal note:Alternatives to payment
(2) Instead of paying the penalty set out in a notice of violation, the person named in the notice may, in the prescribed time and manner,
(a) if the penalty is $5,000 or more, request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the order or the provision to which the violation relates; or
(b) request a review by the Minister of the acts or omissions that constitute the alleged violation or the amount of the penalty.
Marginal note:Deeming
(3) If the person named in the notice of violation does not pay the penalty in the prescribed time and manner and does not exercise any right referred to in subsection (2) in the prescribed time and manner, they are deemed to have committed the violation identified in the notice.
Compliance Agreements
Marginal note:Compliance agreements
39 (1) After considering a request under paragraph 38(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on any terms and conditions that are satisfactory to the Minister. The terms and conditions may
(a) include a provision for the giving of reasonable security, in a form and in an amount satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; and
(b) provide for the reduction, in whole or in part, of the penalty for the violation.
Marginal note:Deeming
(2) A person who enters into a compliance agreement with the Minister is, on doing so, deemed to have committed the violation in respect of which the compliance agreement was entered into.
Marginal note:Notice of compliance
(3) If the Minister is satisfied that a person who has entered into a compliance agreement has complied with it, the Minister shall cause a notice to that effect to be provided to the person, at which time
(a) the proceedings commenced in respect of the violation under section 37 are ended; and
(b) any security given by the person under the compliance agreement shall be returned to the person.
Marginal note:Notice of default
(4) If the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with it, the Minister shall cause a notice of default to be provided to the person to the effect that
(a) instead of the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, the person is liable to pay, in the prescribed time and manner, twice the amount of that penalty, and, for greater certainty, subsection 34(2) does not apply in respect of that amount; or
(b) the security, if any, given by the person under the compliance agreement shall be forfeited to Her Majesty in right of Canada.
Marginal note:Effect of notice of default
(5) Once provided with the notice of default, the person may not deduct from the amount set out in the notice any amount that they spent under the compliance agreement and
(a) the person is liable to pay the amount set out in the notice; or
(b) if the notice provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada and the proceedings commenced in respect of the violation under section 37 are ended.
Marginal note:Effect of payment
(6) If a person pays the amount set out in the notice of default in the prescribed time and manner,
(a) the Minister shall accept the amount as complete satisfaction of the amount owing; and
(b) the proceedings commenced in respect of the violation under section 37 are ended.
Marginal note:Refusal to enter into compliance agreement
40 (1) If the Minister refuses to enter into a compliance agreement requested under paragraph 38(2)(a), the person who made the request is liable to pay the amount of the penalty in the prescribed time and manner.
Marginal note:Effect of payment
(2) If a person pays the amount referred to in subsection (1),
(a) they are deemed to have committed the violation in respect of which the payment is made;
(b) the Minister shall accept the amount as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 37 are ended.
Marginal note:Deeming
(3) If a person does not pay the amount referred to in subsection (1) in the prescribed time and manner, they are deemed to have committed the violation identified in the notice of violation.
Review by the Minister
Marginal note:Review — facts
41 (1) On completion of a review requested under paragraph 38(2)(b) with respect to the acts or omissions that constitute the alleged violation, the Minister shall determine whether the person who requested the review committed the violation. If the Minister determines that the person committed the violation but that the amount of the penalty was not established in accordance with the provisions of this Act and the regulations, the Minister shall correct the amount.
Marginal note:Violation not committed — effect
(2) If the Minister determines under subsection (1) that the person who requested the review did not commit the violation, the proceedings commenced in respect of it under section 37 are ended.
Marginal note:Review — penalty
(3) On completion of a review requested under paragraph 38(2)(b) with respect to the amount of the penalty, the Minister shall determine whether the amount of the penalty was established in accordance with the provisions of this Act and the regulations and, if not, the Minister shall correct the amount.
Marginal note:Notice of decision
(4) The Minister shall cause a notice of any decision made under subsection (1) or (3) to be provided to the person who requested the review.
Marginal note:Payment
(5) The person is liable to pay, in the prescribed time and manner, the amount of the penalty that is confirmed or corrected in the Minister’s decision made under subsection (1) or (3).
Marginal note:Effect of payment
(6) If a person pays the amount referred to in subsection (5),
(a) the Minister shall accept the amount as complete satisfaction of the penalty; and
(b) the proceedings commenced in respect of the violation under section 37 are ended.
Marginal note:Written evidence and submissions
(7) The Minister shall consider only written evidence and written submissions in determining whether a person committed a violation or whether the amount of a penalty was established in accordance with the provisions of this Act and the regulations.
Enforcement
Marginal note:Debts to Her Majesty
42 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court :
(a) the amount of a penalty, from the time the notice of violation setting out the penalty is provided;
(b) every amount set out in a compliance agreement entered into with the Minister under subsection 39(1), from the time the compliance agreement is entered into;
(c) the amount set out in a notice of default referred to in subsection 39(4), from the time the notice is provided; and
(d) the amount of a penalty as set out in a decision of the Minister made under subsection 41(1) or (3), from the time the notice of that decision is provided.
Marginal note:Time limit
(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.
Marginal note:Debt final
(3) A debt referred to in subsection (1) 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 38 to 41.
Marginal note:Certificate of default
43 (1) Any debt referred to in subsection 42(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.
Marginal note:Judgments
(2) On production to the Federal Court, the certificate shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, 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 associated with the registration of the certificate.
Rules About Violations
Marginal note:Certain defences not available
43.1 (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or 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
43.2 In every case when the facts of a violation are reviewed by the Minister, he or she shall determine, on a balance of probabilities, whether the person named in the notice of violation committed the violation identified in the notice.
Marginal note:Violation by corporate officers, etc.
43.3 If a person other than an individual commits a violation under this Act, any of the person’s directors, officers, agents or mandataries who directed, authorized, assented to, acquiesced in 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 the violation is proceeded against under this Act.
Marginal note:Vicarious liability — acts of employees and agents
43.4 A person is liable for a violation that is committed by any employee, agent or mandatary of the person acting in the course of the employee’s employment or the scope of the agent or mandatary’s authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against under this Act.
Marginal note:Continuing violation
43.5 A violation that is continued on more than one day constitutes a separate violation in respect of each day on which it is continued.
Other Provisions
Marginal note:Evidence
43.6 In any proceeding in respect of a violation or a prosecution for an offence, 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 the notice of violation.
Marginal note:Time limit
43.7 Proceedings in respect of a violation shall not be commenced later than six months after the Minister becomes aware of the acts or omissions that constitute the alleged violation.
Marginal note:How act or omission may be proceeded with
43.8 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.
Marginal note:Certification by Minister
43.9 A document appearing to have been issued by the Minister, certifying the day on which the acts or omissions that constitute the alleged violation 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, in the absence of evidence to the contrary, is proof that the Minister became aware of the acts or omissions on that day.
Marginal note:Publication of information
43.91 The Minister may, for the purpose of encouraging compliance with the provisions of this Act and the regulations, publish information about any violation after proceedings in respect of it are ended.
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