An Act to amend the Fisheries Act and other Acts in consequence (S.C. 2019, c. 14)

Marginal note:Prohibition of harvesting of marine plants in certain cases

44 Except in accordance with the conditions of a licence issued by the Minister under section 45, no person shall harvest marine plants in the coastal waters of Canada in contravention of any regulation made under paragraph 46(1)(a).

• Marginal note:Periodic adjustment

  (2) For greater certainty, regulations made under paragraph (1)(d) may provide for periodic adjustment of the fees referred to in that paragraph.

Marginal note:Saving

48 Nothing in sections 44 to 47 shall be construed as preventing traditional harvesting of marine plants by Indigenous persons for their use as food.

• Marginal note:Stopping and detaining vessel or vehicle

  (4) A fishery officer or fishery guardian may, for the purpose referred to in subsection (1), require any vessel or vehicle to be stopped, require it to be moved to a place where an inspection can be carried out and detain it for a reasonable time. The operator of the vessel or vehicle shall comply with the requirements.

Marginal note:Contestations

53 L’agent local des pêches règle les différends portant sur les limites de pêche ou sur des réclamations relatives à des stations de pêche, ou sur la position et l’usage de filets et autres engins de pêche.

Marginal note:Distance entre les pêches

54 Les agents des pêches peuvent fixer la distance devant séparer les pêches; ils enlèvent sur-le-champ tous engins de pêche ou matériaux que le propriétaire néglige ou refuse d’enlever, lequel se rend coupable d’infraction à la présente loi et responsable des frais d’enlèvement et des dommages qui peuvent en résulter.

Analysts

Marginal note:Analyst

• 56.1 (1) The Minister may designate persons or classes of persons as analysts for the purposes of the administration and enforcement of this Act.

• Marginal note:Certificate of analyst as proof

  (2) Subject to subsections (3) and (4), a certificate purporting to be signed by an analyst is, in the absence of evidence to the contrary, presumed to be authentic and is evidence of the facts stated in it in any prosecution for an offence under this Act, if it contains

  • (a) a statement that the analyst has tested or analyzed a substance, product or fish, and the results of the analysis or test; or

  • (b) a statement that the analyst has verified the accuracy of the instruments used by a fishery officer, fishery guardian or inspector to conduct any tests or analyses or to take any measurements.

• Marginal note:Attendance of analyst

  (3) The party against whom an analyst’s certificate is produced may, with the court’s permission, require the analyst’s attendance for cross-examination.

• Marginal note:Notice

  (4) No certificate may be admitted in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.

Marginal note:Information required by the Minister

• 61.1 (1) The Minister may, for the purpose of conducting research, creating an inventory of data, establishing objectives and codes of practice, issuing guidelines or assessing or reporting on the state of fisheries, fish or fish habitat, require any specified person to provide him or her with any document and other information that is in that person’s possession, or to which the person may reasonably be expected to have access.

• Marginal note:Exception — Indigenous knowledge of Indigenous peoples

  (2) The Minister shall not require any Indigenous knowledge of the Indigenous peoples of Canada to be provided to him or her by any person under subsection (1).

• Marginal note:Other recipient

  (3) The Minister may, in accordance with an agreement entered into under section 4.1, require the person to submit the document and other information to the entity that is a party to that agreement.

• Marginal note:Conditions respecting access to information

  (4) Subsection (3) does not apply unless the agreement sets out conditions respecting access by the entity that is a party to that agreement to all or part of the document and other information that the person is required to submit.

• Marginal note:Compliance

  (5) Every person who is required to provide any document and other information shall provide it within the time and in the manner that the Minister specifies.

• Marginal note:Extension of time

  (6) The Minister may, on request in writing from any person who is required to provide any document and other information, extend the specified time.

• Marginal note:Preservation of information

  (7) The Minister may require the person to keep the required document and other information, together with any calculations, measurements and other data on which they are based, and may also specify where, how and how long they are to be kept. However, the period for which they are to be kept shall not exceed five years from the day on which the Minister makes the requirement under subsection (1).

• Marginal note:Inconsistency with regulations

  (8) If there is an inconsistency between any requirements made by the Minister under this section and any provision of the regulations made under paragraphs 43(1)(g.1) and (g.2), the requirements prevail to the extent of the inconsistency.

Indigenous Knowledge of the Indigenous Peoples of Canada

Marginal note:Confidentiality

• 61.2 (1) Any Indigenous knowledge of the Indigenous peoples of Canada that is provided to the Minister under this Act in confidence is confidential and shall not knowingly be, or be permitted to be, disclosed without written consent.

• Marginal note:Exception

  (2) Despite subsection (1), the Indigenous knowledge referred to in that subsection may be disclosed if

  • (a) it is publicly available;

  • (b) the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings; or

  • (c) the disclosure is authorized in the circumstances set out in the regulations made under paragraph 43(1)(j.1).

• Marginal note:Consultation

  (2.1) Before disclosing Indigenous knowledge under paragraph (2)(b) for the purposes of procedural fairness and natural justice, the Minister shall consult the person or entity who provided the Indigenous knowledge and the person or entity to whom it is proposed to be disclosed about the scope of the proposed disclosure and potential conditions under subsection (3).

• Marginal note:Further disclosure

  (3) The Minister may, having regard to the consultation referred to in subsection (2.1), impose conditions with respect to the disclosure of Indigenous knowledge by any person or entity to whom it is disclosed under paragraph (2)(b) for the purposes of procedural fairness and natural justice.

• Marginal note:Duty to comply

  (4) The person or entity referred to in subsection (3) shall comply with any conditions imposed by the Minister under that subsection.

• Marginal note:Protection from civil proceeding or prosecution

  (5) Despite any other Act of Parliament, civil or criminal proceedings shall not be brought against Her Majesty in right of Canada, the Minister and any person acting on behalf of or under the direction of the Minister for the full or partial disclosure of the Indigenous knowledge referred to in subsection (1) made in good faith under this Act or for any consequences of the disclosure.

• Marginal note:Order to extend detention

  (4) A court may, by order, permit the fish or other thing seized or any proceeds realized from its disposition to be detained for any further period that may be specified in the order if the Minister makes a request to that effect before the end of the period of detention in question and the court is satisfied that the order is justified in the circumstances.

Marginal note:Continued detention not required

• 71.01 (1) If a fishery officer is of the opinion that the continued detention of the fish or thing seized under this Act is no longer required for the purpose of any investigation or any proceeding, the fishery officer may apply to a court for an order under subsection (2).

• Marginal note:Order of forfeiture

  (2) The court may, on application by a fishery officer under subsection (1), order that the fish or thing be forfeited to Her Majesty to be disposed of as the Minister directs if the court is satisfied,

  • (a) that the possession of the fish or thing was unlawful at the time of seizure; or

  • (b) if the thing seized is fishing gear or equipment,

    • (i) that it was found in Canadian fisheries waters or in any portion of the continental shelf of Canada that is beyond the limits of Canadian fisheries waters,

    • (ii) that there are reasonable grounds to believe that the fishing gear or equipment is foreign or that it was placed there by a foreign fishing vessel, as defined in subsection 2(1) of the Coastal Fisheries Protection Act, and

    • (iii) that there is no lease, licence nor other authorization under this Act for their use in those waters or in any portion of that continental shelf of Canada, as the case may be.

• Marginal note:Notice of application

  (3) The court may, before making an order under subsection (2), require that notice of the application be sent to the following persons, as the case may be:

  • (a) the person from whom the fish or thing was seized, if known;

  • (b) the person who appears to be the owner of the fishing gear or equipment, if applicable; or

  • (c) any other person whom the court designates as a person who has an interest in the application.

• Marginal note:Appearance before court

  (4) The court shall provide any person to whom notice is sent an opportunity to appear before the court and establish that he or she is lawfully entitled to the possession of the fish or thing.

• Marginal note:Forfeiture or return

  (5) After the hearing, the court may, as the court considers appropriate in the circumstances, order the forfeiture of the fish or thing under subsection (2) or their return.

• Marginal note:Forfeiture of fish — other cases

  (3) If a person is charged with an offence under this Act that relates to fish seized under paragraph 51(a) and the person is acquitted or discharged absolutely or conditionally, or the court orders a stay of the proceedings but it is proved that the fish was caught, possessed, sold, purchased, traded, bartered, imported or exported in contravention of this Act or the regulations, the court may order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.

Marginal note:Application by person claiming interest

• 75 (1) Subject to section 71.01, if any thing other than fish is forfeited to Her Majesty under subsection 72(1) or (4), any person who claims an interest in the thing as owner, mortgagee, lienholder or holder of any like interest, other than a person convicted of the offence that resulted in the forfeiture or a person from whom the thing was seized, may, within 30 days after the forfeiture, apply in writing to a judge for an order under subsection (4).

• b) prendre les mesures qu’il estime justes pour réparer ou éviter les dommages aux poissons, aux pêches ou à l’habitat du poisson résultant ou susceptibles de résulter de la perpétration de l’infraction;

Marginal note:Exemption

79.61 No person commits an offence under this Act by reason of exercising powers or performing duties and functions related to the administration or enforcement of this Act or the regulations, or by reason of accompanying a person exercising those powers or performing those duties and functions, if, in that exercise or that performance, the person complies with the conditions that the Minister may impose.

Alternative Measures Agreements

Marginal note:Definitions

86.1 The following definitions apply in sections 86.2 to 86.95.

alternative measures

alternative measures means measures in respect of the protection of fisheries, fish or fish habitat or the prevention of pollution, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act. (mesures de rechange)

Attorney General

Attorney General means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which the proceedings are taken, and includes the lawful deputy of either of them. (procureur général)

Marginal note:Use of measures

• 86.2 (1) Alternative measures may be used only if doing so is not inconsistent with the purpose of this Act and the following conditions are met:

  • (a) the alleged offence is an offence under this Act, except an offence under section 62 or 63 or any other offence referred to in any regulations made under paragraph 86.95(a);

  • (b) an information has been laid in respect of the offence;

  • (c) the Attorney General, after consulting with the Minister, is satisfied that the measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors:

    • (i) the importance of the protection of fisheries, fish or fish habitat or the prevention of pollution,

    • (ii) the alleged offender’s history of compliance with this Act,

    • (iii) whether the offence is a repeated occurrence,

    • (iv) any allegation that information is being or was concealed or other attempts to subvert the purpose and requirements of this Act are being or have been made, and

    • (v) whether any remedial or preventive action has been taken by or on behalf of the alleged offender in relation to the offence;

  • (d) the alleged offender has been advised of the right to be represented by counsel;

  • (e) the alleged offender accepts responsibility for the act or omission that forms the basis of the offence;

  • (f) the alleged offender applies, in accordance with regulations made under section 86.95, to participate in the measures;

  • (g) the alleged offender and the Attorney General have entered into an alternative measures agreement within 180 days after the day on which the Attorney General provided the alleged offender with initial disclosure of the Crown’s evidence;

  • (h) the Attorney General considers that there is sufficient evidence to proceed with the prosecution of the offence; and

  • (i) the prosecution of the offence is not barred at law.

• Marginal note:Restriction on use

  (2) Alternative measures shall not be used if the alleged offender

  • (a) denies participation or involvement in the commission of the alleged offence; or

  • (b) expresses the wish to have any charge against them dealt with by the court.

• Marginal note:Admissions not admissible in evidence

  (3) No admission, confession or statement accepting responsibility for a given act or omission made by an alleged offender as a condition of being dealt with by alternative measures is admissible in evidence against them in any civil or criminal proceedings.

• Marginal note:Dismissal of charge

  (4) If alternative measures have been used, the court shall dismiss the charge laid against the alleged offender in respect of that offence if the court is satisfied on a balance of probabilities that the alleged offender has complied with the alternative measures agreement.

• Marginal note:No bar to proceedings

  (5) The use of alternative measures is not a bar to any proceedings against the alleged offender under this Act.

• Marginal note:Laying of information, etc.

  (6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with the law.

Marginal note:Sentencing considerations

86.3 If an information in respect of an offence of contravening an alternative measures agreement has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account any sentence that has previously been imposed for the other offence.

Marginal note:Nature of measures contained in agreement

• 86.4 (1) An alternative measures agreement may contain any terms and conditions, including

  • (a) terms and conditions having any or all of the effects set out in section 79.2 or having any of the prescribed effects that the Attorney General, after consulting with the Minister, considers appropriate; and

  • (b) terms and conditions relating to the costs of laboratory and field tests, travel and living expenses, costs of scientific analyses and other reasonable costs associated with supervising and verifying compliance with the agreement.

• Marginal note:Supervisory bodies

  (2) Any governmental or non-governmental body may supervise and verify compliance with an alternative measures agreement.

Marginal note:Duration of agreement

86.5 An alternative measures agreement comes into force on the day on which it is signed or on any later day that the agreement specifies and continues in force for the period, not exceeding five years, that the agreement specifies.

Marginal note:Filing in court for purpose of public access

• 86.6 (1) The Attorney General shall consult with the Minister before entering into an alternative measures agreement and shall cause the agreement to be filed, subject to subsection (5), as part of the court record of the proceedings to which the public has access, with the court in which the information was laid within 30 days after the day on which the agreement was entered into.

• Marginal note:Reports

  (2) A report relating to the administration of or compliance with an alternative measures agreement must, immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed, be filed with the court in which the agreement was filed.

• Marginal note:Confidential information or material injury

  (3) Subject to subsection (4), the following information shall be set out in a schedule to the agreement or to the report:

  • (a) trade secrets of any person;

  • (b) financial, commercial, scientific or technical information that is confidential information and that is treated consistently in a confidential manner by any person;

  • (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice any person’s competitive position; or

  • (d) information the disclosure of which could reasonably be expected to interfere with any person’s contractual or other negotiations.

• Marginal note:Agreement on information to be in schedule

  (4) The parties to an alternative measures agreement must agree on which information is information referred to in paragraphs (3)(a) to (d).

• Marginal note:Schedule confidential

  (5) The schedule is confidential and shall not be filed with the court.

• Marginal note:Prohibition of disclosure

  (6) The Minister shall not disclose any information set out in a schedule except under section 86.93 or under the Access to Information Act.

Marginal note:Stay and recommencement of proceedings

86.7 Despite section 579 of the Criminal Code,

• (a) the Attorney General shall, on filing the alternative measures agreement, stay the proceedings or apply to the court for an adjournment of the proceedings in respect of the offence alleged to have been committed for a period of not more than one year after the day on which the agreement expires; and

• (b) proceedings stayed under paragraph (a) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but if that notice is not given within one year after the day on which the agreement expires, the proceedings are deemed never to have been commenced.

Marginal note:Application to vary agreement

• 86.8 (1) The Attorney General may, on application by the alleged offender and after consulting with the Minister, vary an alternative measures agreement in one or both of the following ways, if the Attorney General considers doing so is appropriate owing to a material change in the circumstances since the agreement was entered into or last varied:

  • (a) by making any changes to the agreement or to its terms and conditions; and

  • (b) by decreasing the period during which the agreement is to remain in force or relieving the alleged offender, either absolutely or partially or for any period that the Attorney General considers appropriate, of compliance with any term or condition that the agreement specifies.

• Marginal note:Filing of varied agreement

  (2) Subject to subsection 86.6(5), an agreement that has been varied shall be filed with the court in which the original agreement was filed.

Marginal note:Records

86.9 Sections 86.91 to 86.93 apply only to alleged offenders who have entered into an alternative measures agreement, regardless of the degree of their compliance with its terms and conditions.

Marginal note:Records of police forces and investigative bodies

• 86.91 (1) A record that relates to an offence under this Act that is alleged to have been committed, including the original or a copy of any fingerprints or photographs of the alleged offender, may be kept by any police force or body responsible for, or participating in, the investigation of the offence.

• Marginal note:Disclosure by fishery officer, fishery guardian or inspector

  (2) A fishery officer, fishery guardian or inspector may disclose to any person any information in a record kept under subsection (1) that it is necessary to disclose in the conduct of the investigation of an offence under this Act.

• Marginal note:Disclosure to insurance company

  (3) A fishery officer, fishery guardian or inspector may disclose to an insurance company any information in a record kept under subsection (1) that it is necessary to disclose for the purpose of the insurance company’s investigation of a claim arising out of an offence under this Act that is committed or alleged to have been committed by the alleged offender to whom the record relates.

Marginal note:Government records

• 86.92 (1) The Minister, fishery officers, fishery guardians and inspectors and any department or agency of a government in Canada with which the Minister has entered into an agreement under section 86.94 may keep records and use information obtained as a result of the use of alternative measures

  • (a) for the purposes of an inspection under this Act or an investigation of any offence under this Act;

  • (b) in any proceedings under this Act;

  • (c) for the purpose of the administration of alternative measures programs; or

  • (d) otherwise for the purposes of the administration or enforcement of this Act.

• Marginal note:Supervision and verification of records

  (2) Any person who is engaged in supervising and verifying compliance with an alternative measures agreement may

  • (a) keep records relating to the supervision and verification; and

  • (b) use any information that they obtain as a result of the supervision and verification for any purpose referred to in subsection (1).

Marginal note:Disclosure of records

• 86.93 (1) Any record referred to in section 86.91 or 86.92 may be

  • (a) made available to any judge or court for any purpose that relates to proceedings relating to offences under this Act that are committed or alleged to have been committed by the alleged offender to whom the record or information relates;

  • (b) made available to any prosecutor, fishery officer, fishery guardian or inspector

    • (i) for the purpose of investigating an offence under this Act that the alleged offender is suspected on reasonable grounds of having committed, or in respect of which the alleged offender has been arrested or charged, or

    • (ii) for any purpose that relates to the administration of the case to which the record relates;

  • (c) made available to any employee of a department or agency of a government in Canada, or any agent or mandatary of that department or agency, that is

    • (i) engaged in the administration of alternative measures in respect of the alleged offender, or

    • (ii) preparing a report in respect of the alleged offender under this Act; or

  • (d) made available to any other person who is considered, or is within a class of persons that is considered, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if that person gives a written undertaking not to subsequently disclose the information except in accordance with subsection (2) and if the judge is satisfied that the disclosure is

    • (i) in the public interest for research or statistical purposes, or

    • (ii) in the interest of the proper administration of justice.

• Marginal note:Subsequent disclosure

  (2) If a record is made available to a person under subparagraph (1)(d)(i), the person may subsequently disclose information contained in the record, but shall not disclose it in any form that could reasonably be expected to identify the alleged offender to whom it relates or any other person specified by the judge.

• Marginal note:Information and copies

  (3) Any person to whom a record is authorized to be made available under this section may be given any information that is contained in the record and may be given a copy of any part of the record.

• Marginal note:Evidence

  (4) Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.

• Marginal note:Exception

  (5) For greater certainty, this section does not apply to an alternative measures agreement, a varied alternative measures agreement or a report that is filed with the court in accordance with section 86.6.

Marginal note:Agreements respecting exchange of information

86.94 The Minister may enter into an agreement with a department or agency of a government in Canada respecting the exchange of information for the purpose of administering alternative measures or preparing a report in respect of an alleged offender’s compliance with an alternative measures agreement.

Marginal note:Regulations

86.95 The Minister may make regulations respecting the alternative measures that may be used for the purposes of this Act, including regulations

• (a) excluding specified offences under this Act from the application of those measures;

• (b) respecting the form and manner in which and the period within which an application under paragraph 86.2(1)(f) to participate in the measures is to be made, and the information that is to be contained in or that is to accompany the application;

• (c) respecting the manner of preparing and filing reports relating to the administration of and compliance with alternative measures agreements;

• (d) respecting the terms and conditions that may be included in an alternative measures agreement and their effects; and

• (e) respecting the classes of reasonable costs and the manner of paying the costs associated with supervising and verifying compliance with an alternative measures agreement.

Marginal note:Offence and punishment

86.96 Every person who contravenes an alternative measures agreement referred to in subsection 86.2(1)

• (a) is guilty of an indictable offence and liable to a fine of not more than $500,000; or

• (b) is guilty of an offence punishable on summary conviction and liable to a fine of not more than $100,000.