Fisheries Act

Marginal note:Inspectors and analysts

• 38 (1) For the purposes of this section, the Minister may designate as an inspector or analyst any person who, in the opinion of the Minister, is qualified to be so designated.

• Marginal note:Certificate to be produced

  (2) The Minister shall furnish every inspector with a certificate of his designation and on entering any place, premises, vehicle or vessel referred to in subsection (3) an inspector shall, if so required, produce the certificate to the person in charge thereof.

• Marginal note:Powers of inspector

  (3) An inspector may, at any reasonable time, enter any place, premises, vehicle or vessel, other than a private dwelling-place or any part of any place, premises, vehicle or vessel used as a permanent or temporary private dwelling-place, where the inspector believes on reasonable grounds that any work or undertaking resulting or likely to result in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions referred to in subsection 37(1) is being, has been or is likely to be carried on, and the inspector may, for any purpose related to the enforcement of this section, conduct inspections, including examining any substance or product found therein, taking samples thereof and conducting tests and measurements.

• Marginal note:Search

  (3.1) An inspector with a warrant issued under subsection (3.2) may at any reasonable time enter any place, premises, vehicle or vessel, other than a private dwelling-place or any part of any place, premises, vehicle or vessel used as a permanent or temporary private dwelling-place, where the inspector believes on reasonable grounds that an offence under subsection 40(2) is being or has been committed and search that place, premises, vehicle or vessel for evidence of the offence.

• Marginal note:Authority to issue warrant

  (3.2) Where on ex parte application a justice of the peace is satisfied by information on oath that there are reasonable grounds to believe that there is in any place, premises, vehicle or vessel referred to in subsection (3.1)

  • (a) anything on or in respect of which an offence under subsection 40(2) 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(2),

  the justice of the peace may issue a warrant under his hand authorizing the inspector named therein to enter and search the place, premises, vehicle or vessel for any such thing subject to such conditions as may be specified in the warrant.

• Marginal note:Use of force

  (3.3) In executing a warrant issued under subsection (3.2), the inspector named therein shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

• Marginal note:Where warrant not necessary

  (3.4) An inspector may exercise the powers of entry and search referred to in subsection (3.1) without a warrant issued under subsection (3.2) 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

  (3.5) For the purposes of subsection (3.4), 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:Duty to report

  (4) Where, out of the normal course of events, there occurs a deposit of a deleterious substance in water frequented by fish or a serious and imminent danger thereof by reason of any condition, and where any damage or danger to fish habitat or fish or the use by man of fish results or may reasonably be expected to result therefrom, any person who at any material time

  • (a) owns the deleterious substance or has the charge, management or control thereof, or

  • (b) causes or contributes to the causation of the deposit or danger thereof,

  shall, in accordance with any regulations applicable thereto, report such occurrence to an inspector or such other person or authority as is prescribed by the regulations.

• Marginal note:Duty to take all reasonable measures

  (5) Every person referred to in paragraph (4)(a) or (b) shall, as soon as possible in the circumstances, take all reasonable measures consistent with safety and with the conservation of fish and fish habitat to prevent any occurrence referred to in subsection (4) or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result therefrom.

• Marginal note:Power to take or direct remedial measures

  (6) Where an inspector, whether or not a report has been made under subsection (4), is satisfied on reasonable grounds that there is an occurrence referred to in subsection (4) and that immediate action is necessary in order to carry out any reasonable measures referred to in subsection (5), he may, subject to subsection (7) and the regulations, take any such measures or direct that they be taken by any person referred to in paragraph (4)(a) or (b).

• Marginal note:Inconsistent orders

  (7) Any requirement or direction of an inspector under this section that is inconsistent with any direction of a marine safety inspector 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 (6), any inspector or other person may enter and have access through any place, premises, vehicle or vessel and may take all reasonable action in order to comply with those subsections or any of them, but nothing in this subsection relieves any person from liability at law for his illegal or negligent acts or omissions or for loss or damage caused to others by such entry, access or action.

• Marginal note:Regulations

  (9) The Governor in Council may make regulations prescribing

  • (a) the person or authority to whom or which a report is to be made under subsection (4), the manner in which the report is to be made, the information to be contained therein and the circumstances in which no report is required to be made;

  • (b) the manner in which inspectors may take any measures or give any directions under subsection (6) and the conditions to which such measures or directions are subject;

  • (c) the manner and circumstances in which any measures taken or directions given under subsection (6) may be reviewed, rescinded or varied; and

  • (d) 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, premises, vehicle or vessel entered by an inspector pursuant to subsection (3) and every person found therein shall give the inspector all reasonable assistance to enable the inspector to carry out his duties and functions under this section and shall furnish the inspector with such information with respect to the administration of this section as he may reasonably require.

• Marginal note:Certificate of analyst as proof

  (11) Subject to subsections (12) and (13), a certificate purporting to be signed by an analyst stating that he has analyzed or tested a substance or product and stating the result of his analysis or test is admissible in evidence in any prosecution for an offence under subsection 40(2) or (3) without proof of the signature or official character of the person appearing to have signed the certificate and, in the absence of any evidence to the contrary, is proof of the statements contained in the certificate.

• Marginal note:Attendance of analyst

  (12) The party against whom there is produced any certificate pursuant to subsection (11) may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

• Marginal note:Notice

  (13) No certificate shall be admitted in evidence pursuant to subsection (11) 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 in question.