Marine Transportation Security Act (S.C. 1994, c. 40)

Enforcement

Marginal note:Designation of security inspectors

• 22 (1) The Minister may designate persons or classes of persons whom the Minister considers qualified to act as security inspectors for the purposes of this Act or any of its provisions.

• Marginal note:Certificate of designation

  (2) The Minister shall furnish every security inspector with a certificate of designation as a security inspector and, on entering any place or inspecting anything, a security inspector shall show the certificate to the person apparently in charge of the place or thing if the person requests proof of the security inspector’s designation.

Marginal note:Inspection of vessels and marine facilities

• 23 (1) For the purpose of ensuring compliance with this Act and any regulation, security measure or security rule, a security inspector may at any reasonable time, but subject to subsection (3), board and inspect any vessel or enter and inspect any marine facility if the inspector is designated to inspect the vessel or facility.

• Marginal note:Powers of inspector

  (2) When conducting the inspection, the security inspector may

  • (a) require the attendance of and question any person who the inspector considers will be able to assist in the inspection;

  • (b) require any person to produce for inspection and copying any document that the inspector believes, on reasonable grounds, contains any information relevant to the administration of this Act or the regulation, security measure or security rule;

  • (c) seize anything found in the course of the inspection that the inspector believes, on reasonable grounds, will afford evidence with respect to an offence under this Act; and

  • (d) detain any vessel that the inspector believes, on reasonable grounds, is a threat to the security of any person, goods, vessel or marine facility, until the inspector is satisfied that the vessel is no longer such a threat.

• Marginal note:Warrant required to enter dwelling-place

  (3) A security inspector may not enter a dwelling-place except under the authority of a warrant or with the consent of the occupant or person apparently in charge of it.

• Marginal note:Authority to issue warrant

  (4) Where on ex parte application a justice, as defined in section 2 of the Criminal Code, is satisfied by information on oath that

  • (a) the conditions for entry described in subsection (1) exist in relation to a dwelling-place,

  • (b) entry is necessary for any purpose relating to the administration or enforcement of this Act, and

  • (c) entry has been refused or there are reasonable grounds for believing that entry will be refused,

  the justice may at any time sign and issue a warrant authorizing the security inspector named in the warrant to enter the dwelling-place subject to any conditions that may be specified in the warrant.

• Marginal note:Use of force

  (5) The security inspector who executes the warrant 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:Search and seizure

24 For greater certainty, sections 487 to 492 of the Criminal Code apply in relation to this Act, but a security inspector may exercise the powers of search and seizure provided in section 487 without a warrant if the conditions for obtaining a warrant exist but the circumstances are such that the delay necessary to obtain a warrant would result in danger to human life or safety.

Marginal note:Assistance to inspectors

• 25 (1) The operator of any vessel or marine facility boarded or entered by a security inspector who is carrying out functions under this Act, and every person found there, shall give the inspector all reasonable assistance in that person’s power to enable the inspector to carry out those functions.

• Marginal note:Obstruction of inspectors

  (2) When a security inspector is carrying out functions under this Act, no person shall fail to comply with any reasonable request of the inspector or otherwise wilfully obstruct the inspector.

• Marginal note:Other prohibitions

  (3) No person shall

  • (a) knowingly make any false or misleading statement or knowingly provide false or misleading information to a security inspector or other person carrying out functions under this Act;

  • (b) wilfully destroy any record or document required to be kept under this Act;

  • (c) make a false entry in a record required to be kept under this Act with intent to mislead, or wilfully omit to make any entry in such a record;

  • (d) remove, alter or interfere in any way with anything seized by a security inspector, except with the inspector’s permission; or

  • (e) wilfully operate a vessel that has been detained under this Act, unless authorized to do so under this Act.

• Marginal note:Offence

  (4) Every person who contravenes this section is guilty of an offence and liable

  • (a) on conviction on indictment

    • (i) in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or

    • (ii) in the case of a corporation, to a fine not exceeding $200,000; or

  • (b) on summary conviction

    • (i) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or

    • (ii) in the case of a corporation, to a fine not exceeding $100,000.

General Provisions Relating to Offences

Marginal note:Continuing offence

26 Where an offence is committed or continued on more than one day, the person who committed it is liable to be convicted of a separate offence for each day on which the offence is committed or continued.

Marginal note:Limitation period for summary conviction offences

27 Proceedings by way of summary conviction may be instituted at any time within, but not later than, two years after the day on which the subject-matter of the proceedings arose.

Marginal note:Offence by employee or agent

• 28 (1) A person is liable to be convicted of an offence committed by their employee or agent, whether or not the employee or agent has been identified, prosecuted or convicted.

• Marginal note:Liability of operator of a vessel

  (2) The operator of a vessel is liable to be convicted of an offence committed in relation to the vessel by another person, whether or not the other person has been identified, prosecuted or convicted, but no person shall be convicted under this subsection if it is established that, without the operator’s consent, the vessel was in the possession of another person at the time of the offence.

• Marginal note:Liability of operator of marine facility

  (3) The operator of a marine facility is liable to be convicted of an offence committed with their consent by another person in relation to the facility, whether or not the other person has been identified, prosecuted or convicted.

• Marginal note:Officers, etc., of corporation

  (4) An officer, director or agent of a corporation that commits an offence under this Act is liable to be convicted of the offence if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation has been prosecuted or convicted.

Marginal note:Defence

29 For greater certainty, no person is liable to be convicted of an offence if the person exercised all due diligence to prevent its commission.

Marginal note:Things seized or detained

30 Where a proceeding is commenced in respect of an offence involving anything seized or detained under this Act and it is detained until the final conclusion of the proceeding, it must be returned to its lawful owner or to the person lawfully entitled to its possession, unless that person has been convicted of an offence under this Act, in which case it may be detained until any fine imposed on conviction has been paid, or it may be sold in satisfaction of the fine or any part of it.

Marginal note:Recovery of fines

• 31 (1) Where a fine imposed on a person convicted of an offence is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same effect as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person for a debt in the amount of the fine.

• Marginal note:Recovery of costs

  (2) All reasonable costs involved in registering the conviction are recoverable in the same way as if they were part of the fine.

Administrative Penalties

Interpretation

Definition of violation

32 In sections 33 to 51, violation means a contravention of a provision that is designated as a violation by the regulations.

Assurances of Compliance and Notices of Violation

Marginal note:If reasonable grounds to believe a violation

• 33 (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may

  • (a) enter into an assurance of compliance with the person that

    • (i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,

    • (ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and

    • (iii) sets out the penalty, fixed by or within the range fixed by the regulations, that the person would have been liable to pay for the violation if the assurance had not been entered into; or

  • (b) issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out

    • (i) the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation,

    • (ii) the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and

    • (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.

• Marginal note:Extension of period

  (2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person’s control.

• Marginal note:Short-form descriptions in notices of violation

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

Marginal note:Deemed violation

• 34 (1) A person who enters into an assurance of compliance under paragraph 33(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

• Marginal note:Request for review

  (2) A person who enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

35 If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice,

• (a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and

• (b) any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.

Marginal note:When assurance of compliance not complied with

• 36 (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,

  • (a) the person is liable to pay double the amount of the penalty set out in the assurance; or

  • (b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.

• Marginal note:No set-off

  (3) On the service of a notice of default, the person served has no right of set-off against any amount spent by the person under the assurance of compliance.

Marginal note:Request for review

• 37 (1) A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.

• Marginal note:Time and place for review

  (2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Certain defences not available

  (5) A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.

• Marginal note:Determination

  (6) The member may confirm the Minister’s decision or determine that the person has complied with the assurance of compliance.

Marginal note:Return of security

38 Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if

• (a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or

• (b) a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.