Canadian Energy Regulator Act (S.C. 2019, c. 28, s. 10)

Security of Regulated Facilities

Marginal note:Security regulations

• 100 (1) The Regulator may, with the approval of the Governor in Council, make regulations respecting the security of regulated facilities, including regulations respecting standards, plans and audits that are related to the security of regulated facilities and respecting cybersecurity matters that are related to regulated facilities and may, for that purpose, define what constitutes cybersecurity.

• Marginal note:Offence and punishment

  (2) Every person who contravenes any of the regulations made under subsection (1) is guilty of an offence and liable

  • (a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years or to both; or

  • (b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or to both.

• Marginal note:Application of subsections 379(2) to (6)

  (3) Subsections 379(2) to (6) apply, with any modifications that the circumstances require, to the offence referred to in subsection (2).

Marginal note:Abandoned facilities

• 101 (1) A person must not make contact with, alter or remove an abandoned facility unless they are authorized to do so in an order made under subsection (2).

• Marginal note:Order

  (2) A designated officer may make an order, subject to any conditions that the designated officer considers appropriate, authorizing a person to make contact with, alter or remove an abandoned facility.

• Marginal note:Exceptions

  (3) The Regulator may make regulations respecting the circumstances in which or conditions under which an order under subsection (2) is not necessary and the Commission may make orders respecting the circumstances in which or conditions under which an order under subsection (2) is not necessary.

Administration and Enforcement

Marginal note:Designation of inspection officers

• 102 (1) The Chief Executive Officer may designate any person or member of any class of persons as an inspection officer to administer and enforce this Part, Parts 3 to 5 and section 335.

• Marginal note:Purposes of designation

  (2) The purposes for which an inspection officer may be designated are:

  • (a) to ensure the safety and security of persons;

  • (b) to ensure the safety and security of regulated facilities and abandoned facilities; and

  • (c) to ensure the protection of property and the environment.

• Marginal note:Certificate

  (3) The Regulator must provide every inspection officer designated under subsection (1) with a certificate of authority. That inspection officer must, if so requested, produce the certificate to the occupant or person in charge of a place referred to in subsection 103(1).

Marginal note:Authority to enter

• 103 (1) An inspection officer may, for a purpose related to verifying compliance or preventing non-compliance with this Part, any of Parts 3 to 5 or section 335, or for a purpose referred to in subsection 102(2), enter a place in which the officer has reasonable grounds to believe that

  • (a) there is anything to which this Part or any of Parts 3 to 5 applies, including a regulated facility or an abandoned facility;

  • (b) there has been carried on, is being carried on or is likely to be carried on any activity in respect of which this Part, any of Parts 3 to 5 or section 335 applies; or

  • (c) there is any book, record, electronic data or other document relating to the application of this Part, any of Parts 3 to 5 or section 335.

• Marginal note:Powers on entry

  (2) The inspection officer may, for that purpose,

  • (a) examine anything in the place;

  • (b) use any means of communication in the place or cause it to be used;

  • (c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

  • (d) prepare a document, or cause one to be prepared, based on the data;

  • (e) make copies of any information contained in any books, records, electronic data or other documents or in computer systems and use any copying equipment in the place, or cause it to be used to make copies of the information;

  • (f) conduct tests or analyses of anything in the place;

  • (g) take measurements or samples of anything in the place;

  • (h) take photographs or make recordings or sketches of anything in the place;

  • (i) remove anything from the place for examination or copying;

  • (j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it;

  • (k) prohibit or limit access to all or part of the place or to anything in the place;

  • (l) direct the owner or person in charge of the place or a person at the place to establish their identity to the inspection officer’s satisfaction or to stop or start an activity; or

  • (m) direct the owner or a person having possession, care or control of anything in the place to not move it, or to restrict its movement, for as long as the inspection officer considers necessary.

• Marginal note:Compliance audit

  (3) For greater certainty, the powers set out in subsection (2) include the power to conduct a compliance audit.

• Marginal note:Duty to assist

  (4) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the inspection officer to perform their duties and functions under this section and must provide any documents or information, and access to any data, that are reasonably required for that purpose.

• Marginal note:Persons accompanying

  (5) The inspection officer may be accompanied by any other person that they believe is necessary to help them perform their duties and functions under this section, and the person is not liable for doing so.

• Marginal note:Entry on private property

  (6) The inspection officer and any person accompanying them may enter private property — other than a dwelling-house or living quarters — and pass through it in order to gain entry to a place referred to in subsection (1) and the person is not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house or living quarters.

Marginal note:Warrant to enter dwelling-house or living quarters

• 104 (1) If the place is a dwelling-house or living quarters, the inspection officer may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing the inspection officer to enter a dwelling-house or living quarters, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house or living quarters is a place referred to in subsection 103(1);

  • (b) entry to the dwelling-house or living quarters is necessary for a purpose related to verifying compliance or preventing non-compliance with this Part, any of Parts 3 to 5 or section 335, or for a purpose referred to in subsection 102(2); and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

• Marginal note:Use of force

  (3) In executing a warrant to enter a dwelling-house or living quarters, an inspection officer may use force only if the use of force has been specifically authorized in the warrant and they are accompanied by a peace officer.

Marginal note:Immunity

105 No action or other proceeding of a civil nature lies against an inspection officer in respect of anything that is done or omitted to be done in good faith while exercising their powers or performing their duties and functions under this Part.

Marginal note:Prohibition — obstruction

106 It is prohibited to obstruct or hinder an inspection officer who is exercising their powers or performing their duties and functions under this Part.

Marginal note:Prohibition — false statements or information

107 It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Part, any of Parts 3 to 5 or section 335 to any inspection officer who is exercising their powers or performing their duties and functions under this Part.

Marginal note:Notice of non-compliance

• 108 (1) If an inspection officer has reasonable grounds to believe that a person has contravened this Part, any of Parts 3 to 5 or section 335, he or she may issue a notice of non-compliance to the person.

• Marginal note:Contents of notice

  (2) A notice must be made in writing and must set out

  • (a) the name of the person to whom the notice is directed;

  • (b) the provision of this Part, any of Parts 3 to 5 or section 335 or any of their regulations that is alleged to have been contravened, the order or decision that is alleged to have been contravened, or the condition of any certificate, order or decision, permit or authorization, leave or exemption that is alleged to have been contravened;

  • (c) the relevant facts surrounding the alleged contravention; and

  • (d) the period within which the person may provide comments in response to the notice.

Marginal note:Grounds for making order

• 109 (1) If an inspection officer who is expressly authorized by the Chief Executive Officer to make orders under this section has reasonable grounds to believe that there is or is likely to be a contravention of this Part or any of Parts 3 to 5 or section 335, or for a purpose referred to in subsection 102(2), the inspection officer may, by order, direct a person to

  • (a) stop doing something that is in contravention of this Part or any of Parts 3 to 5 or section 335 or cause it to be stopped;

  • (b) take any measure that is necessary in order to comply with this Part or any of Parts 3 to 5 or section 335 or mitigate the effects of non-compliance;

  • (c) stop doing something that may cause a hazard to the safety or security of persons, or damage to property or the environment or cause it to be stopped; or

  • (d) take any measure that is necessary to prevent or mitigate the hazard to the safety or security of persons or damage to property or the environment.

• Marginal note:Terms of order

  (2) The order may require work associated with a facility, including a regulated facility, abandoned facility or ground disturbance to be suspended until the hazardous or detrimental situation has been remedied to the satisfaction of an inspection officer or the order is stayed or rescinded.

• Marginal note:Notice and report

  (3) An inspection officer who makes an order under this section must, as soon as possible,

  • (a) give written notice of the order to the person to whom it is directed, including the terms of the order and a statement of the reasons for the order; and

  • (b) report the circumstances and terms of the order to the Commission.

Marginal note:Effect of appeal

110 For greater certainty, an appeal before the Commission from an order made under section 109 does not operate as a stay of the order, but the Commission may grant a stay pending the outcome of the appeal.

Marginal note:Information confidential

111 An inspection officer must not disclose to any person any information regarding any secret process or trade secret obtained while performing duties and functions under this Part, except for the purposes of this Part or as required by law.

Marginal note:Offence and punishment — duty to assist and orders

• 112 (1) Every person who contravenes subsection 103(4) or fails to comply with an order under section 109 is guilty of an offence and is liable

  • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than five years or to both; or

  • (b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or to both.

• Marginal note:Defence — no notice

  (2) A person must not be found guilty of an offence for failing to comply with an order under section 109 unless the person was given written notice of the order in accordance with paragraph 109(3)(a).

• Marginal note:Offence and punishment — obstruction

  (3) Every person who contravenes section 106 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $300,000.

• Marginal note:Application of subsections 379(2) to (6)

  (4) Subsections 379(2) to (6) apply, with any modifications that the circumstances require, in respect of an offence under subsections (1) and (3).

• Marginal note:Offence and punishment — false statements or information

  (5) Every person who contravenes section 107 is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $300,000.

• Marginal note:Application of subsections 379(3) to (6)

  (6) Subsections 379(3) to (6) apply, with any modifications that the circumstances require, in respect of an offence under subsection (5).

Privilege

Marginal note:Definitions

• 113 (1) The following definitions apply in this section.

  coroner

  coroner includes any medical examiner or other person carrying out the duties and functions of a coroner. (coroner)

  recording

  recording means the whole or any part of either a recording of voice communications originating from, or received on or in, a regulated facility, or a video recording of the activities of the operating personnel of the regulated facility, which recording of voice communications or video recording is made, using recording equipment to which the operating personnel does not have access, in a place where operations of the facility are carried out and includes a transcript or substantial summary of such a recording. (enregistrement)

• Marginal note:Privilege for recordings

  (2) Every recording is privileged and, except as provided by this section, a person, including any person to whom access is provided under this section, must not

  • (a) knowingly communicate a recording or permit it to be communicated to any person; or

  • (b) be required to produce a recording or give evidence relating to it in any legal, disciplinary or other proceedings.

• Marginal note:Access by Regulator

  (3) Any recording that relates to an accident that is the subject of an inquiry under subsection 32(2) must be released to the Regulator on request for the purposes of the inquiry.

• Marginal note:Use by Regulator

  (4) The Regulator may make any use of any recording obtained under this Act that it considers necessary for the purposes of the inquiry under subsection 32(2), but, subject to subsection (5), must not knowingly communicate or permit to be communicated to anyone any portion of it that is unrelated to the inquiry.

• Marginal note:Access by peace officers, coroners and other investigators

  (5) The Regulator must make available any recording obtained under this Act to

  • (a) a coroner who requests access to it for the purpose of an investigation that the coroner is conducting;

  • (b) any person carrying out an inquiry under subsection 32(2); or

  • (c) any person carrying out a coordinated investigation referred to in the Canadian Transportation Accident Investigation and Safety Board Act.

• Marginal note:Power of court or coroner

  (6) Despite any other provision of this section, if, in any proceedings before a court or coroner, a request for the production and discovery of a recording is made, the court or coroner must cause notice of the request to be given to the Regulator, if the Regulator is not a party to the proceedings and, in camera, examine the recording and give the Regulator a reasonable opportunity to make representations with respect to it. If the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the recording by virtue of this section, the court or coroner must order the production and discovery of the recording, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to the recording.

• Marginal note:Use prohibited

  (7) A recording is not to be used against agents or employees who are directly or indirectly involved in the operation of a regulated facility in disciplinary proceedings, in proceedings relating to their capacity or competence to perform their functions, or in legal or other proceedings.

• Marginal note:Definition of court

  (8) For the purposes of subsection (6), court includes any person appointed or designated to conduct a public inquiry into a pipeline occurrence, within the meaning of section 2 of the Canadian Transportation Accident Investigation and Safety Board Act, under the Inquiries Act.