PART IIOceans Management Strategy (continued)
Administration and Enforcement (continued)
Direction and Detention of Ships
Marginal note:Direction of ship to place
39.2 An enforcement officer may direct a ship to move to any place in Canadian waters or the exclusive economic zone of Canada if they have reasonable grounds to believe that the ship or a person on board the ship has committed, is committing or is about to commit an offence under this Act in Canadian waters or the exclusive economic zone of Canada and that the ship was, is being or is about to be used in connection with the commission of the offence.
- 1996, c. 31, s. 39.2
- 2019, c. 8, s. 11
Marginal note:Detention order to ship
39.21 (1) An enforcement officer may make a detention order in relation to a ship if they have reasonable grounds to believe that the ship or a person on board the ship has committed an offence under this Act in Canadian waters or the exclusive economic zone of Canada and that the ship was used in connection with the commission of the offence.
Marginal note:Order in writing
(2) The detention order shall be in writing and addressed to all persons, at any port in Canada where the ship to which the order relates is or will be located, who are empowered to give a clearance in respect of the ship.
Marginal note:Service of order
(3) Notice of the detention order shall be served by delivering a copy of the notice personally to the master or another officer, the authorized representative, the owner or the operator of the ship, or if service cannot reasonably be effected personally, by posting a copy of the notice on any conspicuous part of the ship.
Marginal note:Duty after service of order
(4) Once notice of the detention order is served on any person referred to in subsection (3), the ship shall not move, other than in accordance with any conditions specified in the order, until the order has been rescinded.
Marginal note:No clearance after receiving order
(5) Subject to subsection (6), a person who has received the detention order shall not give clearance to the ship to which the order relates.
Marginal note:When clearance may be given
(6) A person who has received the detention order may give clearance to the ship to which the order relates if
(a) neither the ship nor any person is charged with the offence that gave rise to the making of the order within 30 days after the day on which the order is made;
(b) within 30 days after the day on which the order is made, the ship or a person is charged with the offence and every accused has appeared in Canada to answer to the charge;
(c) Her Majesty in right of Canada is given security, in a form determined by the Minister, for payment of the maximum fine that may be imposed as a result of a conviction of every accused and costs that might be incurred in proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Minister;
(d) all proceedings in respect of the offence that gave rise to the making of the order are discontinued; or
(e) the order is rescinded by an enforcement officer.
Marginal note:Compliance order
39.22 (1) If an enforcement officer has reasonable grounds to believe that a person is committing an offence under this Act — or is about to commit an offence under this Act — the enforcement officer may issue a compliance order directing any person described in subsection (3) to take, at their own expense, any of the measures referred to in subsection (4) that the enforcement officer believes are reasonable in the circumstances, and consistent with the protection and preservation of the marine environment and with public safety, in order to cease the commission of the offence or to refrain from committing it.
Marginal note:Order to ship
(2) For the purposes of subsection (1), an order is deemed to have been given to the ship and is binding on it, if
(a) the order is given to the master or another officer, the authorized representative, the owner or the operator of the ship; or
(b) in the case of an order that cannot be given to any person referred to in paragraph (a) despite reasonable efforts having been made to do so, the order is posted on any conspicuous part of the ship.
Marginal note:Persons subject to compliance order
(3) Subsection (1) applies to any person who causes or contributes to, or is likely to cause or contribute to, the offence.
Marginal note:Specific measures
(4) The compliance order may require that the person to whom it is directed take one or more of the following measures:
(a) do anything to comply with this Act or the regulations;
(b) refrain from doing anything in contravention of this Act or the regulations;
(c) cease any activity for a specified period or until the enforcement officer is satisfied that the activity is in compliance with this Act and the regulations;
(d) move any conveyance to a location by the route and in the manner that the enforcement officer specifies;
(e) unload or reload the contents of any conveyance; and
(f) take any other reasonable measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the marine environment damaged by the offence or to protect the components of the marine environment that would be put at risk if the offence were committed — including
(i) maintaining records on any relevant matter,
(ii) reporting periodically to the enforcement officer, and
(iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject-matter of the order.
Marginal note:Contents of compliance order
(5) Subject to section 39.23, the compliance order shall be made in writing and shall set out
(a) the name of the person or persons to whom it is directed;
(b) the provisions of this Act or the regulations, or the order made under subsection 35.1(2) or 36(1), that has been or that is about to be contravened;
(c) the relevant facts surrounding the offence described in subsection (1);
(d) the measures to be taken; and
(e) the time or the day when each measure is to begin or the period during which it is to be carried out.
Marginal note:Statutory Instruments Act
Marginal note:Order given orally
39.23 (1) In the case of exigent circumstances, a compliance order may be given orally on the condition that it is followed, within seven days after the day on which the oral order was issued, by a written order issued in accordance with section 39.22.
Marginal note:Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 39.22(5) would result in danger to human life or the marine environment.
Marginal note:Compliance with compliance order
Marginal note:No bar to proceedings
(2) The issuance of, or compliance with, a compliance order is not a bar to any proceedings against the person under this or any other Act in relation to the offence described in subsection 39.22(1).
Marginal note:Intervention by enforcement officer
Marginal note:Access to property
(2) An enforcement officer or other person authorized by an enforcement officer to take measures under subsection (1) may enter and have access to any place, other than a dwelling-place, and may do any reasonable thing that may be necessary in the circumstances.
Marginal note:Personal liability
(3) A person, other than a person described in subsection 39.22(3), who provides assistance or advice to the enforcement officer in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.
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