Short Title

Marginal note:Short title

1 This Act may be cited as the Fisheries Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  Aboriginal

  Aboriginal, in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization; (autochtone)

  analyst

  analyst means a person who is designated under subsection 38(1) to perform the functions of an analyst; (analyste)

  Canadian fisheries waters

  Canadian fisheries waters means all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada; (eaux de pêche canadiennes)

  close time

  close time means a specified period during which fish to which it applies may not be fished, and “closed time” or “closed season” has a similar meaning; (période d’interdiction et période de fermeture ou saison de fermeture)

  commercial

  commercial, in relation to a fishery, means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter; (commerciale)

  fish

  fish includes

  • (a) parts of fish,

  • (b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and

  • (c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals; (poissons)

  fishery

  fishery includes the area, locality, place or station in or on which a pound, seine, net, weir or other fishing appliance is used, set, placed or located, and the area, tract or stretch of water in or from which fish may be taken by the said pound, seine, net, weir or other fishing appliance, and also the pound, seine, net, weir, or other fishing appliance used in connection therewith; (pêcherie)

  fishery guardian

  fishery guardian means a person who is designated as a fishery guardian pursuant to subsection 5(1); (garde-pêche)

  fishery officer

  fishery officer means a person who is designated as a fishery officer pursuant to subsection 5(1); (agent des pêches)

  fish habitat

  fish habitat means spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes; (habitat)

  fishing

  fishing means fishing for, catching or attempting to catch fish by any method; (pêche)

  fishing vessel

  fishing vessel means any vessel used, outfitted or designed for the purpose of catching, processing or transporting fish; (bateau de pêche)

  fishway

  fishway means any device, work or other thing that provides for the free passage of fish, including a canal, a fish pump, a fish ladder, a fish elevator and a fish lock; (passe migratoire)

  inspector

  inspector means a person who is designated as an inspector pursuant to subsection 38(1); (inspecteur)

  lawful excuse

  lawful excuse[Repealed, 1991, c. 1, s. 1]

  Minister

  Minister means the Minister of Fisheries and Oceans or, in respect of any matter related to the Northern Pipeline referred to in the Northern Pipeline Act, the member of the Queen’s Privy Council for Canada designated as the Minister for the purposes of that Act; (ministre)

  obstruction

  obstruction means any slide, dam or other thing impeding wholly or partially the free passage of fish; (obstacle)

  recreational

  recreational, in relation to a fishery, means that fish is harvested under the authority of a licence for personal use of the fish or for sport; (récréative)

  vehicle

  vehicle means any conveyance that may be used for transportation, including aircraft. (véhicule)

• Marginal note:Serious harm to fish

  (2) For the purposes of this Act, serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat.

Purposes

2.1 [Repealed, R.S., 1985, c. 35 (1st Supp.), s. 6]

Application

Marginal note:Provincial rights not affected

• 3 (1) Nothing in this Act shall be taken to authorize the granting of fishery leases that confer an exclusive right to fish in property belonging to a province.

• Marginal note:Application of Act to Her Majesty

  (2) This Act is binding on Her Majesty in right of Canada or a province.

Marginal note:Licences to take spawn

4 Nothing in this Act precludes the granting by the Minister of written permission to obtain fish for purposes of stocking or artificial breeding or for scientific purposes.

Agreements, Programs and Projects

Marginal note:Minister may enter into agreements

• 4.1 (1) The Minister may enter into an agreement with a province to further the purposes of this Act, including an agreement with respect to one or more of the following:

  • (a) facilitating cooperation between the parties to the agreement, including facilitating joint action in areas of common interest, reducing overlap between their respective programs and otherwise harmonizing those programs;

  • (b) facilitating enhanced communication between the parties, including the exchange of scientific and other information; and

  • (c) facilitating public consultation or the entry into arrangements with third-party stakeholders.

• Marginal note:Contents of agreement

  (2) An agreement may establish

  • (a) the roles, powers and functions of the parties;

  • (b) programs and projects;

  • (c) principles and objectives of the parties’ respective programs and projects;

  • (d) standards, guidelines and codes of practice to be followed by the parties in the administration of their respective programs and projects;

  • (e) processes for policy development, operational planning and communication between the parties, including the exchange of scientific and other information;

  • (f) the administrative structures that will be used to carry out the agreement’s objectives;

  • (g) the power of the parties to create committees and public panels and to conduct public consultations; and

  • (h) the circumstances and manner in which the province is to provide information on the administration and enforcement of a provision of its laws that the agreement provides is equivalent in effect to a provision of the regulations.

• Marginal note:Regulations

  (3) The Governor in Council may make regulations establishing the conditions under which the Minister may enter into or renew an agreement, including procedures for entering into or renewing the agreement.

• Marginal note:Agreements to be published

  (4) The Minister shall publish an agreement in the manner that he or she considers appropriate.

Marginal note:Declaration of equivalent provisions

• 4.2 (1) If an agreement entered into under section 4.1 provides that there is in force a provision under the laws of the province that is equivalent in effect to a provision of the regulations, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply in the province with respect to the subject matter of the provision under the laws of the province.

• Marginal note:Non-application of provisions

  (2) Except with respect to Her Majesty in right of Canada, the provisions of this Act or of the regulations that are set out in the order do not apply within that province with respect to the subject matter of the provision under the laws of the province.

• Marginal note:Revocation

  (3) The Governor in Council may revoke the order if the Governor in Council is satisfied that the provision under the laws of the province is no longer equivalent in effect to the provision of the regulations or is not being adequately administered or enforced.

• Marginal note:Notice to province

  (4) The Governor in Council may revoke the order only if the Minister has given notice of the proposed revocation to the province.

• Marginal note:Order ceases to have effect

  (5) The order ceases to have effect either when it is revoked by the Governor in Council or when the agreement to which the order relates terminates or is terminated.

Marginal note:Report to Parliament

4.3 The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration of sections 4.1 and 4.2 in that fiscal year.

Marginal note:Objectives

• 4.4 (1) The Minister may implement programs and projects for the purposes of this Act and, to facilitate the implementation of a program or project, may

  • (a) make grants and contributions;

  • (b) make loans;

  • (c) make recoverable expenditures on behalf of any person or body, or any federal or provincial minister, department or agency; and

  • (d) guarantee the repayment of any financial obligation, or provide loan insurance or credit insurance in respect of such an obligation.

• Marginal note:Regulations

  (2) The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations respecting such grants, contributions, loans, guarantees and insurance.

• Marginal note:Agreements, etc.

  (3) In exercising powers and performing functions under subsection (1), the Minister may

  • (a) enter into agreements — including an agreement under section 4.1 — or arrangements or transactions with any person or body, or any federal or provincial minister, department or agency; and

  • (b) with the approval of the Minister of Finance, requisition amounts in respect of such an agreement, arrangement or transaction to be paid out of the Consolidated Revenue Fund.

Fishery Officers and Fishery Guardians

Marginal note:Designation

• 5 (1) The Minister may designate any persons or classes of persons as fishery officers or fishery guardians for the purposes of this Act and may limit in any manner the Minister considers appropriate the powers that a fishery officer or fishery guardian may exercise under this Act or any other Act of Parliament.

• Marginal note:Certificate of designation

  (2) Each fishery officer and fishery guardian shall be provided with a certificate in a form the Minister considers appropriate certifying their designation as such and, where the powers of a fishery officer or fishery guardian are limited pursuant to subsection (1), specifying the powers that the officer or guardian may exercise under this Act or any other Act of Parliament.

• Marginal note:Presentation of certificate

  (3) On entering any place under this Act or any other Act of Parliament, a fishery officer or fishery guardian shall, on request, show the certificate of designation to the person in charge of the place.

• Marginal note:Laws of certain First Nations

  (4) The powers and protections that a fishery officer or fishery guardian has under this or any other Act of Parliament, including the powers and protections of a peace officer under the Criminal Code, apply to a fishery officer or fishery guardian enforcing

  • (a) Nisga’a laws made under the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act;

  • (b) Tsawwassen Laws, within the meaning of subsection 2(2) of the Tsawwassen First Nation Final Agreement Act, made under chapter 9 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act; or

  • (c) Maanulth Laws, within the meaning of subsection 2(2) of the Maanulth First Nations Final Agreement Act, made under chapter 10 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act.

Factors To Be Taken into Account

Marginal note:Factors

6 Before recommending to the Governor in Council that a regulation be made in respect of section 35 or under paragraph 37(3)(c) or 43(1)(i.01) or subsection 43(5), and before exercising any power under subsection 20(2) or (3) or 21(1), paragraph 35(2)(b) or (c) or subsection 35(3), or under subsection 37(2) with regard to an offence under subsection 40(1) or with regard to harm to fish, the Minister shall consider the following factors:

• (a) the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;

• (b) fisheries management objectives;

• (c) whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery; and

• (d) the public interest.

Marginal note:Purpose

6.1 The purpose of section 6, and of the provisions set out in that section, is to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.

Fishery Leases and Licences

Marginal note:Fishery leases and licences

• 7 (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

• Marginal note:Idem

  (2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.

Marginal note:Fees

8 Except where licence fees are prescribed in this Act, the Governor in Council may prescribe the fees that are to be charged for fishery or fishing licences.

Marginal note:Minister may cancel licence

9 The Minister may suspend or cancel any lease or licence issued under the authority of this Act, if

• (a) the Minister has ascertained that the operations under the lease or licence were not conducted in conformity with its provisions; and

• (b) no proceedings under this Act have been commenced with respect to the operations under the lease or licence.

Fish Allocation for Financing Purposes

Marginal note:Allocation of fish

• 10 (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may determine a quantity of fish or of fishing gear and equipment that may be allocated for the purpose of financing scientific and fisheries management activities that are described in a joint project agreement entered into with any person or body, or any federal or provincial minister, department or agency.

• Marginal note:Quantity in licence

  (2) The Minister may specify, in a licence issued under this Act, a quantity of fish or of fishing gear and equipment allocated for the purpose of financing those activities.

11 to 16 [Repealed, 1991, c. 1, s. 3]

Lobster Fisheries

17 [Repealed, 1991, c. 1, s. 4]

Marginal note:Licences for lobster pounds

• 18 (1) No one shall maintain a pound or enclosure in which lobsters, legally caught during the open season, are retained for sale during the close season at a place where the pound or enclosure is located, or for export therefrom, except under a licence from the Minister, and no lobsters shall be taken from any such pound or enclosure and disposed of during the close season at the place where it is located, except under a certificate from a fishery officer or fishery guardian, setting out the pound or enclosure from which the lobsters were taken and that they had been legally caught during the open season.

• Marginal note:Marking of pounds

  (2) Each pound or enclosure referred to in subsection (1) shall be marked with the name of the licensee and the number of his licence, and the marking shall be in black on a white ground, with letters and figures that are at least six inches in height.

• Marginal note:Fee

  (3) The annual fee for a licence referred to in subsection (1) shall be seventy-five dollars.

19 [Repealed, 1991, c. 1, s. 5]

Fishways

Marginal note:Studies, analyses, samplings and evaluations

• 20 (1) If the Minister considers that doing so is necessary to ensure the free passage of fish or to prevent harm to fish, the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to fish shall, on the Minister’s request and within the period specified by the Minister, conduct studies, analyses, samplings and evaluations, and provide the Minister with any document or other information relating to them, to the obstruction or thing or to the fish or fish habitat that is affected or is likely to be affected by the obstruction or thing.

• Marginal note:Minister’s request

  (2) If the Minister considers that doing so is necessary to ensure the free passage of fish or to prevent harm to fish, the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to fish shall, on the Minister’s request, within the period specified by the Minister and in accordance with any specifications of the Minister,

  • (a) remove the obstruction or thing;

  • (b) construct a fishway;

  • (c) implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water;

  • (d) install a fish stop or a diverter;

  • (e) install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal;

  • (f) maintain the flow of water that the Minister considers sufficient to permit the free passage of fish; or

  • (g) permit the escape, into the water below the obstruction or thing, at all times of the quantity of water that the Minister considers sufficient for the safety of fish or for the flooding of fish habitat to an appropriate depth.

• Marginal note:Modification, repair and maintenance

  (3) On the Minister’s request, the owner or person referred to in subsection (2) shall

  • (a) make any provision that the Minister considers necessary for the free passage of fish or to prevent harm to fish during the construction, implementation, installation, modification or repair of anything mentioned in that subsection;

  • (b) operate and maintain that thing in a good and effective condition and in accordance with any specifications of the Minister; and

  • (c) modify or repair it in accordance with any specifications of the Minister.

• Marginal note:Obstruction of free passage of fish

  (4) No person shall

  • (a) damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction;

  • (b) damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s request;

  • (c) stop or hinder fish from entering or passing through any fishway, or from surmounting any obstacle or leap;

  • (d) damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request; or

  • (e) fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.

• Marginal note:Exception — removal for repairs

  (5) Despite paragraph (4)(d), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request if the removal is required for modification, repair or maintenance.

Marginal note:Devices to prevent escape of fish

• 21 (1) The Minister may authorize the installation and maintenance of fish guards, screens, coverings, netting or other devices in waters to prevent fish held for breeding from escaping or for any other purpose that the Minister considers to be in the public interest.

• Marginal note:Removal

  (2) No person shall damage, remove or authorize the removal of such a fish guard, screen, covering, netting or other device, unless they are authorized to do so by the Minister.

22 [Repealed, 2012, c. 19, s. 136]

General Prohibitions

Marginal note:Fishing in limits leased to another prohibited

23 No one shall fish for, take, catch or kill fish in any water, along any beach or within any fishery described in any lease or licence, or place, use, draw or set therein any fishing gear or apparatus, except by permission of the occupant under the lease or licence for the time being, or shall disturb or injure any such fishery.

Marginal note:Seines, nets, etc., not to obstruct navigation

24 Seines, nets or other fishing apparatus shall not be set or used in such manner or in such place as to obstruct the navigation of boats and vessels and no boats or vessels shall destroy or wantonly injure in any way seines, nets or other fishing apparatus lawfully set.

Marginal note:Setting gear during close time

• 25 (1) Subject to the regulations, no person shall place or set any fishing gear or apparatus in any water, along any beach or within any fishery during a close time.

• Marginal note:Removal of gear

  (2) Subject to the regulations and subsection (3), any person who places or sets any fishing gear or apparatus in any water, along any beach or within any fishery shall remove it when the gear or apparatus is not being tended and prior to the commencement of a close time.

• Marginal note:Officer’s discretion

  (3) A fishery officer may permit fishing gear or apparatus to remain in the water, along a beach or within a fishery after the commencement of a close time for any period the fishery officer considers necessary to permit the removal of the gear or apparatus.

26 [Repealed, 2012, c. 19, s. 137]

27 [Repealed, 2012, c. 19, s. 137]

Marginal note:Use of explosives prohibited

28 No one shall hunt or kill fish or marine animals of any kind, other than porpoises, whales, walruses, sea-lions and hair seals, by means of rockets, explosive materials, explosive projectiles or shells.

Marginal note:Obstructing passage of fish or waters

• 29 (1) No person shall erect, use or maintain any seine, net, weir or other fishing appliance that

  • (a) unduly obstructs the passage of fish in any Canadian fisheries waters, whether subject to any exclusive right of fishery or not; or

  • (b) obstructs more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream.

• Marginal note:Removal

  (2) The Minister or a fishery officer may order the removal of or remove any seine, net, weir or other fishing appliance that, in the opinion of the Minister or fishery officer, results in an obstruction referred to in paragraph (1)(a) or (b).

• Marginal note:Tidal streams

  (3) For the purposes of paragraph (1)(b), if a tidal stream has no main channel at low tide, then the tidal stream’s width is considered to be the width of its main channel.

30 [Repealed, 2012, c. 19, s. 138]

Marginal note:Permit required

• 31 (1) No one shall catch, fish for, take, buy, sell, possess or export any fish for the purposes of converting it into fish meal, manure, guano or fertilizer, or for the manufacture or conversion of the fish into oil, fish meal or manure or other fertilizing product, except under authority of the Minister.

• Marginal note:Exception by Minister

  (2) The Minister may, by notice published in the Canada Gazette, except any kind or kinds of fish from the operation of all or any part of subsection (1).

32 [Repealed, 2012, c. 19, s. 139]

Marginal note:Unlawful sale or possession

33 No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or the regulations.

Marginal note:Definition of “fishing plan”

• 33.1 (1) In this section, fishing plan means a Nisga’a annual fishing plan, as defined in the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act, that is approved, or varied and approved, by the Minister in accordance with that Agreement.

• Marginal note:Contravention of fishing plan

  (2) Where a fishing plan stipulates that this subsection applies to certain of its provisions relating to persons engaged in harvesting, sale or related activities, no person shall contravene any of those provisions.

• Marginal note:Conditions of prosecution

  (3) No proceedings may be commenced in respect of an offence for the contravention of subsection (2)

  • (a) except in accordance with an agreement, made under paragraph 93 of the Fisheries Chapter of the Nisga’a Final Agreement, concerning enforcement of federal laws or Nisga’a laws; or

  • (b) unless the Minister, or a person appointed to a position in the Department of Fisheries and Oceans who is authorized by the Minister, considers such proceedings to be necessary to ensure compliance with the fishing plan.

Fisheries Protection and Pollution Prevention

Marginal note:Definitions

• 34 (1) For the purposes of sections 35 to 43,

  deleterious substance

  deleterious substance means

  • (a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, or

  • (b) any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water,

  and without limiting the generality of the foregoing includes

  • (c) any substance or class of substances prescribed pursuant to paragraph (2)(a),

  • (d) any water that contains any substance or class of substances in a quantity or concentration that is equal to or in excess of a quantity or concentration prescribed in respect of that substance or class of substances pursuant to paragraph (2)(b), and

  • (e) any water that has been subjected to a treatment, process or change prescribed pursuant to paragraph (2)(c); (substance nocive)

  deposit

  deposit means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing; (immersion ou rejet)

  fish habitat

  fish habitat[Repealed, 2012, c. 19, s. 141]

  water frequented by fish

  water frequented by fish means Canadian fisheries waters. (eaux où vivent des poissons)

• Regulations for purpose of definition deleterious substance

  (2) The Governor in Council may make regulations prescribing

  • (a) substances and classes of substances,

  • (b) quantities or concentrations of substances and classes of substances in water, and

  • (c) treatments, processes and changes of water

  for the purpose of paragraphs (c) to (e) of the definition deleterious substance in subsection (1).

Marginal note:Serious harm to fish

• 35 (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

• Marginal note:Exception

  (2) A person may carry on a work, undertaking or activity without contravening subsection (1) if

  • (a) the work, undertaking or activity is a prescribed work, undertaking or activity, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

  • (b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;

  • (c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or entity and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

  • (d) the serious harm is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or

  • (e) the work, undertaking or activity is carried on in accordance with the regulations.

• Marginal note:Regulations

  (3) The Minister may, for the purposes of paragraph (2)(a), make regulations prescribing anything that is authorized to be prescribed.

• Marginal note:Statutory Instruments Act

  (4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act.

Marginal note:Throwing overboard of certain substances prohibited

• 36 (1) No one shall

  • (a) throw overboard ballast, coal ashes, stones or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on;

  • (b) leave or deposit or cause to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high and low water mark, remains or offal of fish or of marine animals; or

  • (c) leave decayed or decaying fish in any net or other fishing apparatus.

• Marginal note:Disposal of remains, etc.

  (2) Remains or offal described in subsection (1) may be buried ashore, above high water mark.

• Marginal note:Deposit of deleterious substance prohibited

  (3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

• Marginal note:Deposits authorized by regulation

  (4) No person contravenes subsection (3) by depositing or permitting the deposit in any water or place of

  • (a) waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act;

  • (b) a deleterious substance of a class and under conditions — which may include conditions with respect to quantity or concentration — authorized under regulations made under subsection (5) applicable to that water or place or to any work or undertaking or class of works or undertakings; or

  • (c) a deleterious substance the deposit of which is authorized by regulations made under subsection (5.2) and that is deposited in accordance with those regulations.

• Marginal note:Regulations for authorizing certain deposits

  (5) The Governor in Council may make regulations for the purpose of paragraph (4)(b) prescribing

  • (a) the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection (3);

  • (b) the waters or places or classes thereof where any deleterious substances or classes thereof referred to in paragraph (a) are authorized to be deposited;

  • (c) the works or undertakings or classes thereof in the course or conduct of which any deleterious substances or classes thereof referred to in paragraph (a) are authorized to be deposited;

  • (d) the quantities or concentrations of any deleterious substances or classes thereof referred to in paragraph (a) that are authorized to be deposited;

  • (e) the conditions or circumstances under which and the requirements subject to which any deleterious substances or classes thereof referred to in paragraph (a) or any quantities or concentrations of those deleterious substances or classes thereof are authorized to be deposited in any waters or places or classes thereof referred to in paragraph (b) or in the course or conduct of any works or undertakings or classes thereof referred to in paragraph (c); and

  • (f) the persons who may authorize the deposit of any deleterious substances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization.

• Marginal note:Regulations — Governor in Council

  (5.1) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s regulation-making power under subsection (5.2).

• Marginal note:Regulations — Minister

  (5.2) If regulations have been made under subsection (5.1), the Minister may make regulations

  • (a) authorizing the deposit of deleterious substances specified in the regulations, or substances falling within a class of deleterious substances specified in the regulations;

  • (b) authorizing the deposit of deleterious substances into waters or places falling within a class of waters or places;

  • (c) authorizing the deposit of deleterious substances resulting from a work, undertaking or activity falling within a class of works, undertakings or activities;

  • (d) establishing conditions, which may include conditions with respect to quantity or concentration, for the deposit of deleterious substances referred to in paragraphs (a) to (c); and

  • (e) establishing, for the purposes of paragraphs (a) to (c), classes of

    • (i) deleterious substances,

    • (ii) waters and places, and

    • (iii) works, undertakings and activities.

• Marginal note:Directions by the Minister

  (6) A person authorized to deposit a deleterious substance by or under regulations made under subsection (5) or (5.2) shall, when directed by the Minister, despite any regulations made under paragraph (5)(e) or (5.2)(d) or any conditions set out in an authorization made under paragraph (5)(f), conduct any sampling, analyses, tests, measurements or monitoring, install or operate any equipment or comply with any procedures, and report any information, that is required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized.

Marginal note:Minister may require plans and specifications

• 37 (1) If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, evaluations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine

  • (a) whether the work, undertaking or activity results or is likely to result in any serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or

  • (b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.

• Marginal note:Ecologically significant areas

  (1.1) If a person proposes to carry on any work, undertaking or activity in any ecologically significant area, the person shall, on the request of the minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any prescribed material and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity.

• Marginal note:Powers of Minister

  (2) If, after reviewing any material or information provided under subsection (1) or (1.1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, or that the work, undertaking or activity results or is likely to result in harm to fish in an ecologically significant area, the Minister or the designated person may, by order, subject to regulations made under paragraph (3)(b),

  • (a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or

  • (b) restrict the carrying on of the work, undertaking or activity.

  The Minister or the designated person may also direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances.

• Marginal note:Regulations

  (3) The Governor in Council may make regulations

  • (a) prescribing the manner and circumstances in which any information or material shall be provided to the Minister without request under subsection (1) or (1.1);

  • (b) prescribing the manner and circumstances in which the Minister or a person designated by the Minister may make orders under subsection (2) and the terms of the orders; and

  • (c) defining ecologically significant area for the purposes of subsection (1.1).

• Marginal note:Consultation with provinces

  (4) Where the Minister or a person designated by the Minister proposes to make an order pursuant to subsection (2), he shall offer to consult with the governments of any provinces that he considers to be interested in the proposed order and with any departments or agencies of the Government of Canada that he considers appropriate.

• Marginal note:Exception

  (5) Nothing in subsection (4) prevents the Minister or a person designated by the Minister from making an interim order pursuant to subsection (2) without the offer of consultation referred to in subsection (4) where he considers that immediate action is necessary.

Marginal note:Power to designate

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

• Marginal note:Certificate to be produced

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

• Marginal note:Authority to enter

  (3) An inspector may, for a purpose related to verifying compliance with this Act, enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the inspector believes on reasonable grounds that

  • (a) there is anything that is detrimental to fish habitat; or

  • (b) there has been carried on, is being carried on or is likely to be carried on any work, undertaking or activity resulting or likely to result in

    • (i) serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery,

    • (ii) the deposit of a substance in water frequented by fish or in any place under any conditions where the substance or any other substance that results from the deposit of the substance may enter any such water.

• Marginal note:Powers on entry

  (3.1) The inspector may, for a purpose related to verifying compliance with this Act, examine any substance or product in the place or premises, take samples of it and conduct tests and measurements.

• (3.2) to (3.5) [Repealed, 2012, c. 19, s. 145]

• Marginal note:Duty to notify — serious harm to fish

  (4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of an occurrence that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time

  • (a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or

  • (b) causes or contributes to the occurrence or the danger of the occurrence.

• Marginal note:Duty to notify — deleterious substance

  (5) If there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence, then every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations if the person at any material time

  • (a) owns or has the charge, management or control of

    • (i) the deleterious substance, or

    • (ii) the work, undertaking or activity that resulted in the deposit or the danger of the deposit; or

  • (b) causes or contributes to the occurrence or the danger of the occurrence.

• Marginal note:Duty to take corrective measures

  (6) Any person described in paragraph (4)(a) or (b) or (5)(a) or (b) shall, as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.

• Marginal note:Report

  (7) As soon as feasible after the occurrence or after learning of the danger of the occurrence, the person shall provide an inspector, fishery officer or an authority prescribed by the regulations with a written report on the occurrence or danger of the occurrence.

• Marginal note:Corrective measures

  (7.1) If an inspector or fishery officer, whether or not they have been notified under subsection (4) or (5) or provided with a report under subsection (7), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (6), the inspector or officer may, subject to subsection (7.2), take any of those measures at the expense of any person described in paragraph (4)(a) or (b) or (5)(a) or (b) or direct such a person to take them at that person’s expense.

• Marginal note:Inconsistency

  (7.2) Any direction of an inspector or fishery officer under this section that is inconsistent with any direction 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 (7.1), any inspector or other person may enter and have access through any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — and may take all reasonable measures in order to ensure that those subsections are complied with. However, nothing in this subsection relieves any person from liability at law for illegal or negligent acts or omissions or for loss or damage caused to others by the entry, access or measure.

• Marginal note:Regulations

  (9) The Governor in Council may make regulations prescribing

  • (a) the authority for the purposes of subsection (4) or (5), the manner in which the notification under those subsections is to be made, the information to be contained in the notification and the circumstances in which no notification need be made;

  • (b) the authority for the purposes of subsection (7), the manner in which the report under that subsection is to be made, the information to be contained in the report and the circumstances in which no report need be made;

  • (c) the manner in which inspectors and fishery officers may take any measures or give any directions under subsection (7.1) and the conditions to which those measures are subject;

  • (d) the manner and circumstances in which any measures taken or directions given under subsection (7.1) may be reviewed, rescinded or varied; and

  • (e) 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 or premises entered by an inspector under subsection (3) and every person found there shall give the inspector all reasonable assistance to enable the inspector to carry out their duties and functions under this section and shall provide the inspector with any information with respect to verifying compliance with this Act that the inspector requires.

• 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.

Marginal note:Search

• 39 (1) A fishery officer or inspector who has a warrant issued under subsection (2) in which the officer or inspector is named may enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the officer or inspector has reasonable grounds to believe that an offence under subsection 40(1), (2) or (3) is being or has been committed and search the place, premises, vehicle or vessel for evidence of the offence.

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing any fishery officer or inspector named in the warrant to enter and search any place or premises referred to in subsection (1), subject to any conditions that are specified in the warrant, if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in the place or premises

  • (a) anything on or in respect of which an offence under subsection 40(1), (2) or (3) 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(1), (2) or (3).

• Marginal note:Use of force

  (3) In executing a warrant issued under subsection (2), an inspector named in the warrant may use force only if they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

• Marginal note:When warrant not necessary

  (4) A fishery officer or inspector may exercise the powers of entry and search referred to in subsection (1) without a warrant issued under subsection (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

  (5) For the purposes of subsection (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:Offence and punishment

• 40 (1) Every person who contravenes subsection 35(1) is guilty of an offence and liable

  • (a) on conviction on indictment,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

• Marginal note:Offence and punishment

  (2) Every person who contravenes subsection 36(1) or (3) is guilty of an offence and liable

  • (a) on conviction on indictment,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

• Marginal note:Small revenue corporation status

  (2.1) For the purpose of subsections (1) and (2), a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

• Marginal note:Relief from minimum fine

  (2.2) The court may impose a fine that is less than the minimum amount provided for in subsection (1) or (2) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in either of those subsections.

• Marginal note:Other offences

  (3) Every person who

  • (a) in carrying on a work, undertaking or activity, fails to comply with a prescribed condition of an authorization under paragraph 35(2)(a) or (c), with a condition established by the Minister under paragraph 35(2)(b), or with a condition set out in the regulations or established under any other authorization issued under this Act,

  • (a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) or (1.1) within a reasonable time after the request is made,

  • (b) fails to provide or submit any material, information or report that is to be provided or submitted under regulations made pursuant to subsection 37(3),

  • (c) fails to provide notification that he or she is required to provide under subsection 38(4) or (5),

  • (d) carries on any work, undertaking or activity described in subsection 37(1) or (1.1)

    • (i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1) or (1.1),

    • (ii) otherwise than in accordance with any such material or information as required to be modified by any order of the Minister under paragraph 37(2)(a), or

    • (iii) contrary to any order made by the Minister under subsection 37(2),

  • (e) fails to take any reasonable measures that he or she is required to take under subsection 38(6) or fails to take those measures in the required manner,

  • (f) fails to provide a report that he or she is required to provide under subsection 38(7),

  • (g) fails to comply with the whole or any part of a direction of an inspector or a fishery officer under subsection 38(7.1), or

  • (h) fails to comply with a request of the Minister made under section 20,

  is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding two hundred thousand dollars and, for any subsequent offence, to a fine not exceeding two hundred thousand dollars or to imprisonment for a term not exceeding six months, or to both.

• (4) [Repealed, 1991, c. 1, s. 10]

• Marginal note:Matters of proof

  (5) For the purpose of any proceedings for an offence under subsection (2) or (3),

  • (a) a deposit as defined in subsection 34(1) takes place whether or not any act or omission resulting in the deposit is intentional; and

  • (b) no water is water frequented by fish, as defined in subsection 34(1), where proof is made that at all times material to the proceedings the water is not, has not been and is not likely to be frequented in fact by fish.

• Marginal note:Application of fines

  (6) All fines received by the Receiver General in respect of the commission of an offence under this section are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat, or for administering that Fund.

• Marginal note:Recommendations of court

  (7) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (6).

• 41 (1) to (3) [Repealed, 1991, c. 1, s. 11]

• Marginal note:Action to enjoin not prejudiced by prosecution

  (4) Notwithstanding that a prosecution has been instituted in respect of an offence under section 40, the Attorney General of Canada may commence and maintain proceedings to enjoin anything punishable as an offence under that section.

Marginal note:Civil liability to Her Majesty

• 42 (1) Where there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under section 36 or a serious and imminent danger thereof by reason of any condition, the persons who at any material time

  • (a) own the deleterious substance or have the charge, management or control thereof, or

  • (b) are persons other than those described in paragraph (a) who cause or contribute to the causation of the deposit or danger thereof,

  are, subject to subsection (4) in the case of the persons referred to in paragraph (a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons referred to in paragraph (b), jointly and severally liable for all costs and expenses incurred by Her Majesty in right of Canada or a province, to the extent that those costs and expenses can be established to have been reasonably incurred in the circumstances, of and incidental to the taking of any measures to prevent any such deposit or condition or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result therefrom.

• Marginal note:Recovery

  (2) All the costs and expenses referred to in subsection (1) are recoverable by Her Majesty in right of Canada or a province with costs in proceedings brought or taken therefor in the name of Her Majesty in any such right in any court of competent jurisdiction.

• Marginal note:Liability to fishermen

  (3) Where, as a result of a deposit that is not authorized under section 36, a deleterious substance enters water frequented by fish, the persons described in paragraphs (1)(a) and (b) are, subject to subsection (4) in the case of the persons described in paragraph (1)(a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons described in paragraph (1)(b), jointly and severally liable for all loss of income incurred by any licensed commercial fisherman, to the extent that the loss can be established to have been incurred as a result of the deposit or of a prohibition to fish resulting therefrom, and all such loss is recoverable with costs in proceedings brought or taken therefor in any court of competent jurisdiction.

• Marginal note:Defences to liability

  (4) The liability of any person described in paragraph (1)(a) is absolute and does not depend on proof of fault or negligence but no such person is liable for any costs and expenses pursuant to subsection (1) or loss of income pursuant to subsection (3) if he establishes that the occurrence giving rise to the liability was wholly caused by

  • (a) an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

  • (b) an act or omission with intent to cause damage by a person other than a person for whose wrongful act or omission he is by law responsible.

• Marginal note:Exception

  (5) Nothing in this section limits or restricts any right of recourse that any person who is liable pursuant to this section may have against any other person.

• Marginal note:Limitation

  (6) No proceedings may be commenced under subsections (1) to (3) at any time later than two years after the occurrence to which the proceedings relate could reasonably be expected to have become known to Her Majesty in right of Canada or a province or to any licensed commercial fisherman, as the case may be.

• Marginal note:Exception

  (7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001, constitutes a discharge of a pollutant caused by or otherwise attributable to a vessel.

• Marginal note:Other civil remedies not affected

  (8) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is authorized under this Act, is an offence under this Act or gives rise to civil liability under this Act.

Marginal note:Annual report

• 42.1 (1) The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration and enforcement of the provisions of this Act relating to fisheries protection and pollution prevention for that year.

• Marginal note:Statistical summary

  (2) The annual report shall include a statistical summary of convictions under section 40 for that year.

Regulations

Marginal note:Regulations

• 43 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations

  • (a) for the proper management and control of the sea-coast and inland fisheries;

  • (b) respecting the conservation and protection of fish;

  • (c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;

  • (d) respecting the operation of fishing vessels;

  • (e) respecting the use of fishing gear and equipment;

  • (e.1) respecting the marking, identification and tracking of fishing vessels;

  • (e.2) respecting the designation of persons as observers, their duties and their carriage on board fishing vessels;

  • (f) respecting the issue, suspension and cancellation of licences and leases;

  • (g) respecting the terms and conditions under which a licence and lease may be issued;

  • (g.1) respecting any records, books of account or other documents to be kept under this Act and the manner and form in which and the period for which they shall be kept;

  • (g.2) respecting the manner in which records, books of account or other documents shall be produced and information shall be provided under this Act;

  • (h) respecting the obstruction and pollution of any waters frequented by fish;

  • (i) respecting the conservation and protection of spawning grounds;

  • (i.01) excluding fisheries from the definitions Aboriginal, commercial and recreational;

  • (i.1) for the purposes of paragraph 35(2)(a), prescribing anything that is authorized to be prescribed;

  • (i.2) respecting applications for the authorizations referred to in paragraph 35(2)(b) or (c);

  • (i.3) prescribing the conditions under which and requirements subject to which persons or entities referred to in paragraph 35(2)(c) may grant the authorization;

  • (i.4) respecting time limits for issuing authorizations referred to in paragraph 35(2)(b) or (c), or for refusing to do so;

  • (j) respecting the export of fish or any part thereof from Canada;

  • (k) respecting the taking or carrying of fish or any part thereof from one province to any other province;

  • (l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties;

  • (m) where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit in respect of that area or any portion of that area;

  • (n) establishing a list of aquatic invasive species;

  • (o) respecting the control of aquatic invasive species, including regulations

    • (i) respecting the prevention of the spread of such species,

    • (ii) respecting the possession of members of such species, and their import, export and transport,

    • (iii) respecting the release of members of such species into Canadian fisheries waters,

    • (iv) respecting the handling of members of such species, or

    • (v) requiring any person to keep any record, book or other document containing any information relevant to the control of such species, and respecting where, how and how long they are to be kept; and

  • (p) prescribing anything that is required or authorized by this Act to be prescribed.

• Marginal note:Regulations — Governor in Council

  (2) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s power to make regulations under subsection (3).

• Marginal note:Amendments to list of aquatic invasive species

  (3) The Minister may, by regulation, add species to the list of aquatic invasive species established by regulations made under paragraph (1)(n) or remove species from that list, and vary the places to which regulations made under paragraph (1)(o) apply.

• Marginal note:Statutory Instruments Act

  (4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act.

• Marginal note:Regulations exempting certain Canadian fisheries waters

  (5) The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of sections 20, 21 and 35 and subsection 38(4).

Marginal note:Recommendation

43.1 Orders and regulations under subsections 4.2(1) and (3), 34(2), 36(5) and (5.1), 37(3) and 38(9) and section 43 are made on the recommendation of the Minister or, if they are made for the purposes of and in relation to the subject matters set out in an order made under section 43.2, on the recommendation of the minister designated under that section.

Marginal note:Designation

• 43.2 (1) The Governor in Council may, on the recommendation of the Minister and any other federal minister, by order, designate that other minister as the minister responsible for the administration and enforcement of subsections 36(3) to (6) for the purposes and in relation to the subject-matters set out in the order.

• Marginal note:Designated minister’s powers, duties and functions

  (2) The order may set out any powers, duties or functions of the Minister under this Act that the designated minister may exercise or perform — or any provisions of this Act in which a reference to the Minister is a reference to the designated minister — for the purposes of administering and enforcing subsections 36(3) to (6).

Marine Plants

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 pursuant to paragraph 46(a).

Marginal note:Licences

45 The Minister may, on receipt of an application made in accordance with the regulations, issue a licence to the applicant for the harvesting of marine plants in the coastal waters of Canada for a term not exceeding one year and on such conditions relating to

• (a) the nature of the gear and equipment to be used in the harvesting,

• (b) the manner in which the harvesting is to be carried out,

• (c) the quantity of marine plants authorized to be harvested thereunder, and

• (d) the area or areas within the coastal waters of Canada where the harvesting is to be carried out or where harvesting may not be carried out,

as the Minister considers to be necessary for the protection and conservation of the marine plant resources of the coastal waters of Canada.

Marginal note:Regulations

46 The Governor in Council may make regulations

• (a) prohibiting, subject to the conditions of any licence issued by the Minister under section 45,

  • (i) the harvesting of marine plants or of any class of marine plants,

  • (ii) the harvesting of marine plants or of any class of marine plants in quantities in excess of quantities specified in the regulations, or

  • (iii) the harvesting of marine plants or of any class of marine plants in a manner specified in the regulations,

  in the coastal waters of Canada or any area or areas of the coastal waters of Canada specified in the regulations;

• (b) prohibiting, notwithstanding the conditions of any licence, the harvesting of marine plants or of any class of marine plants in any area or areas of the coastal waters of Canada for such period or periods as are specified in the regulations;

• (c) requiring persons to whom licences are issued under section 45 to maintain such books and records and to make such returns of information to the Minister as the Governor in Council deems necessary for the enforcement of this Act and the regulations; and

• (d) prescribing the fees to be paid for licences issued under section 45.

Marginal note:Interpretation

47 For the purposes of sections 44 to 46,

coastal waters of Canada

coastal waters of Canada means all Canadian fisheries waters not within the geographical limits of any province; (eaux côtières du Canada)

harvest

harvest includes cut, take, dredge, rake or otherwise obtain; (récolte)

marine plant

marine plant includes all benthic and detached algae, marine flowering plants, brown algae, red algae, green algae and phytoplankton. (plante marine)

Marginal note:Saving

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

Powers of Fishery Officers and Fishery Guardians

Marginal note:Inspection

• 49 (1) Subject to subsection (2), for the purpose of ensuring compliance with this Act and the regulations, a fishery officer or fishery guardian may enter and inspect any place, including any premises, vessel or vehicle, in which the officer or guardian believes on reasonable grounds there is any work or undertaking or any fish or other thing in respect of which this Act or the regulations apply and may

  • (a) open any container that the officer or guardian believes on reasonable grounds contains any fish or other thing in respect of which this Act or the regulations apply;

  • (b) examine any fish or other thing that the officer or guardian finds and take samples of it;

  • (c) conduct any tests or analyses and take any measurements; and

  • (d) require any person to produce for examination or copying any records, books of account or other documents that the officer or guardian believes on reasonable grounds contain information that is relevant to the administration of this Act or the regulations.

• Marginal note:Operation of data processing systems and copying equipment

  (1.1) In carrying out an inspection of a place under subsection (1), a fishery officer or fishery guardian may,

  • (a) use or cause to be used any data processing system at the place to examine any data contained in or available to the data processing system;

  • (b) reproduce any record or cause it to be reproduced from the data in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and

  • (c) use or cause to be used any copying equipment at the place to make copies of any record, book of account or other document.

• Marginal note:Duty to assist

  (1.2) The owner or person in charge of a place that is inspected by a fishery officer or fishery guardian under subsection (1) and every person found in the place shall

  • (a) give the officer or guardian all reasonable assistance to enable the officer or guardian to carry out the inspection and exercise any power conferred by this section; and

  • (b) provide the officer or guardian with any information relevant to the administration of this Act or the regulations that the officer or guardian may reasonably require.

• Marginal note:Disposition of samples

  (1.3) A fishery officer or fishery guardian who takes a sample under paragraph (1)(b) may dispose of it in any manner that the officer or guardian considers appropriate.

• Marginal note:Warrant required to enter dwelling-house

  (2) Where any place, premises, vessel or vehicle referred to in subsection (1) is a dwelling-house, a fishery officer or fishery guardian may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (3).

• Marginal note:Authority to issue warrant

  (3) Where on ex parte application a justice of the peace is satisfied by information on oath

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

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

  • (c) that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused,

  the justice of the peace may issue a warrant under his hand authorizing the fishery officer or fishery guardian named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant.

• (4) [Repealed, 1991, c. 1, s. 13]

Marginal note:Search

• 49.1 (1) A fishery officer with a warrant issued under subsection (2) may enter and search any place, including any premises, vessel or vehicle, in which the officer believes on reasonable grounds there is

  • (a) any work or undertaking that is being or has been carried on in contravention of this Act or the regulations;

  • (b) any fish or other thing by means of or in relation to which this Act or the regulations have been contravened; or

  • (c) any fish or other thing that will afford evidence in respect of a contravention of this Act or the regulations.

• Marginal note:Authority to issue warrant

  (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 referred to in subsection (1) any fish or other thing referred to in subsection (1), the justice may issue a warrant authorizing the fishery officer named in the warrant to enter and search the place for the thing subject to any conditions that may be specified in the warrant.

• Marginal note:Where warrant not necessary

  (3) Notwithstanding subsection (1), a fishery officer may exercise the power of search referred to in that subsection without a warrant issued under subsection (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

  (4) For the purposes of subsection (3), exigent circumstances include circumstances in which the delay necessary to obtain the warrant would result in danger to human life or safety or the loss or destruction of evidence.

• Marginal note:Powers during search

  (5) In carrying out a search of a place under this section, a fishery officer may exercise any power mentioned in subsection 49(1), (1.1) or (1.3).

Marginal note:Arrest

50 Any fishery officer, fishery guardian or peace officer may arrest without warrant a person who that fishery officer, guardian or peace officer believes, on reasonable grounds, has committed an offence against this Act or any of the regulations, or whom he finds committing or preparing to commit an offence against this Act or any of the regulations.

Marginal note:Seizure of fishing vessel, etc.

51 A fishery officer or fishery guardian may seize any fishing vessel, vehicle, fish or other thing that the officer or guardian believes on reasonable grounds was obtained by or used in the commission of an offence under this Act or will afford evidence of an offence under this Act, including any fish that the officer or guardian believes on reasonable grounds

• (a) was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations; or

• (b) has been intermixed with fish referred to in paragraph (a).

Marginal note:Entry by fishery officer

52 In the discharge of his duties, any fishery officer, fishery guardian or other person accompanying him or authorized to such effect by the fishery officer may enter on and pass through or over private property without being liable for trespass.

Marginal note:Disputes

53 Disputes between persons relating to fishing limits or claims to fishery stations, or relating to the position and use of nets and other fishing apparatus, shall be settled by the local fishery officer.

Marginal note:Distances between fisheries

54 Fishery officers may determine or prescribe the distance between each and every fishery and shall forthwith remove any fishing apparatus or materials that the owner neglects or refuses to remove, and the owner is liable for a contravention of this Act and for the cost of removing the apparatus and materials and any damages that may result therefrom.

Marginal note:Boundaries of estuary fishing

55 The Minister, or any fishery officer duly authorized by the Minister, has power to define the boundaries of tidal waters and estuaries and to designate what is the mouth of any river, stream or other water for the purposes of this Act.

Marginal note:Gurry grounds

56 Gurry grounds may be designated or defined by any fishery officer.

Culture of Fish

Marginal note:Waters for propagation of fish

57 The Minister may authorize any river or other water to be set apart for the natural or artificial propagation of fish.

Marginal note:Special licences for oyster beds

58 Special licences and leases for any term of years may be granted to any person who wishes to plant or form oyster beds in any of the bays, inlets, harbours, creeks or rivers, or between any of the islands on the coast of Canada, and the holder of any such licence or lease has the exclusive right to the oysters produced or found on the beds within the limits of the licence or lease.

Marginal note:Authority to provinces to grant leases for oyster cultivation

• 59 (1) The Governor in Council may, on such terms and conditions as are agreed on, authorize the government of any province to grant leases of such areas of the sea-coast, bays, inlets, harbours, creeks, rivers and estuaries of the province as the government of the province considers suitable for the cultivation and production of oysters, and any persons to whom such leases are granted by the province, subject to the fishery regulations of Canada, have the exclusive right to the oysters produced or found on the beds within the limits of their respective leases.

• Marginal note:Rights of Canada preserved

  (2) Where an area referred to in subsection (1) or any part thereof is in a public harbour, nothing in that subsection prejudices the right or title of Canada to the enjoyment and use of the harbour for every purpose other than the cultivation and production of oysters.

Vacant Public Property

Marginal note:Vacant public property

• 60 (1) Every subject of Her Majesty may, for the purpose of landing, salting, curing and drying fish, use, and cut wood on, vacant public property that by law is common and accessory to public rights of fishery and navigation.

• Marginal note:Prohibition

  (2) No person shall occupy the same station on vacant public property described in subsection (1) unless it has been abandoned by the first occupant for twelve consecutive months.

• Marginal note:Payment may be required

  (3) At the expiration of the twelve months referred to in subsection (2), any new occupier shall pay the value of the flakes and stages and other property thereon, of which he takes possession, or the buildings and improvements may be removed by the original owner.

• Marginal note:Leased property

  (4) No property leased or licensed shall be deemed vacant.

Information Returns

Marginal note:Persons who may be required to provide information

• 61 (1) The following persons may be required under this Act to provide information or to keep records, books of account or other documents:

  • (a) any person who engages in fishing;

  • (b) any person who purchases fish for the purpose of resale;

  • (c) any owner, operator or manager of an enterprise that catches, cultures, processes or transports fish; and

  • (d) any agent or employee of a person referred to in paragraphs (a) to (c).

• Marginal note:Information that may be required

  (2) A person referred to in subsection (1) may be required to provide information or to keep records or other documents relating to any of the following matters:

  • (a) the number, sex, size, weight, species, product form, value or other particulars of any fish caught, cultured, processed, transported, sold or purchased;

  • (b) the time and place at which any fish was caught or landed and the person, enterprise or vessel by which the fish was caught or landed;

  • (c) the time and place at which any fish was purchased and the person, enterprise or vessel from which the fish was purchased;

  • (d) the vessels, gear and methods used and the number of persons employed for the purpose of catching fish;

  • (e) the buildings, equipment, products and methods used and the number of persons employed for the purpose of culturing or processing fish; and

  • (f) any other matter relating to the proper management and control of fisheries or the conservation and protection of fish.

• Marginal note:Duty to keep books

  (3) A person referred to in subsection (1) shall keep any records, books of account or other documents that may be required by the regulations or by the terms and conditions of any lease or licence issued to the person under this Act and the records, books of account or other documents shall be kept in the manner and form and for the period prescribed by the regulations, lease or licence.

• Marginal note:Duty to provide information

  (4) A person referred to in subsection (1) shall, on the request of any fishery officer or fishery guardian, provide the officer or guardian, or any authority designated by the officer or guardian, with any information relating to a matter mentioned in subsection (2) that the officer or guardian may request.

• Marginal note:Idem

  (5) A person referred to in subsection (1) shall, in accordance with the regulations and the terms and conditions of any lease or licence issued to the person under this Act, provide a fishery officer, a fishery guardian or any authority designated in the regulations, lease or licence with any information relating to a matter mentioned in subsection (2) that the regulations, lease or licence requires.

Obstruction and False Information

Marginal note:Obstruction

62 No person shall obstruct or hinder a fishery officer, a fishery guardian or an inspector who is carrying out duties or functions under this Act.

Marginal note:False statements

• 63 (1) No person shall make a false or misleading statement, whether orally or in writing, to an inspector, a fishery officer, a fishery guardian, any authority designated by a fishery officer or a fishery guardian or any authority prescribed under paragraph 38(9)(a) or (b) who is carrying out duties or functions under this Act.

• Marginal note:False statements in licence application

  (2) No person shall make a false or misleading statement, whether orally or in writing, in an application for a lease or licence under this Act.

• Marginal note:False records

  (3) No person shall produce for examination or copying by an inspector, a fishery officer or a fishery guardian or any authority designated by a fishery officer or a fishery guardian any records, books of account or other documents that contain false or misleading information.

64 and 65 [Repealed, 1991, c. 1, s. 18]

66 [Repealed, 2012, c. 19, s. 152]

67 [Repealed, 2012, c. 19, s. 152]

68 [Repealed, 1991, c. 1, s. 20]

69 [Repealed, 2012, c. 19, s. 153]

Disposition of Seized Things

Marginal note:Custody of seized things

• 70 (1) A fishery officer or fishery guardian who seizes any fish or other thing under this Act may retain custody of it or deliver it into the custody of any person the officer or guardian considers appropriate.

• Marginal note:Request by officer or guardian

  (2) A person who is given custody of any fish or other thing under subsection (1) shall, on the request of a fishery officer or fishery guardian at any reasonable time, make the fish or thing available for inspection by or deliver it into the custody of the officer or guardian.

• Marginal note:Perishables

  (3) A fishery officer or fishery guardian who has custody of any fish or other perishable thing seized under this Act may dispose of it in any manner the officer or guardian considers appropriate and any proceeds realized from its disposition shall be paid to the Receiver General.

Marginal note:Detention of seized things

• 71 (1) Subject to this section, any fish or other thing seized under this Act, or any proceeds realized from its disposition, may be detained until the fish or thing or proceeds are forfeited or proceedings relating to the fish or thing are finally concluded.

• Marginal note:Return on deposit of security

  (2) Subject to subsection 72(4), a court may order any fish or other thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount that is satisfactory to the Minister.

• Marginal note:Return where proceedings not instituted

  (3) Subject to subsection 72(4), where proceedings are not instituted in relation to any fish or other thing seized under this Act, the fish or thing or any proceeds realized from its disposition shall be returned to the person from whom it was seized

  • (a) on the Minister’s decision not to institute proceedings; or

  • (b) on the expiration of ninety days after the day of the seizure or any further period that may be specified in an order made under subsection (4).

• Marginal note:Order to extend detention

  (4) Where a court is satisfied, on the application of the Minister within ninety days after the day on which any fish or other thing is seized, that detention of the fish or thing for a period greater than ninety days is justified in the circumstances, the court may, by order, permit the fish or thing to be detained for any further period that may be specified in the order.

Marginal note:Recovery of costs

• 71.1 (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order the person to pay the Minister an amount of money as compensation for any costs incurred in the seizure, storage or disposition of any fish or other thing seized under this Act by means of or in relation to which the offence was committed.

• Marginal note:Debt due to Her Majesty

  (2) Where a court orders a person to pay an amount of money as compensation under subsection (1), the amount and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.

Marginal note:Forfeiture of things

• 72 (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that any thing seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from its disposition, be forfeited to Her Majesty.

• Marginal note:Forfeiture of fish

  (2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall, in addition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.

• Marginal note:Idem

  (3) Where a person is charged with an offence under this Act that relates to fish seized pursuant to paragraph 51(a) and the person is acquitted but it is proved that the fish was caught 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:Forfeiture where ownership not ascertainable

  (4) Where the ownership of any fish or other thing seized under this Act cannot be ascertained at the time of the seizure, the fish or thing is thereupon forfeited to Her Majesty.

Marginal note:Disposal of forfeited things

• 73 (1) Subject to sections 75 to 77, any fish or other thing forfeited to Her Majesty under subsection 72(1), (2) or (3) shall be disposed of after the final conclusion of the proceedings relating to the fish or thing, as the Minister directs.

• Marginal note:Disposal where ownership not ascertained

  (2) Subject to sections 75 to 77, any fish or other thing forfeited to Her Majesty under subsection 72(4) shall be disposed of after the expiration of thirty days from the day of forfeiture, as the Minister directs.

• Marginal note:Exception

  (3) Notwithstanding subsection (2), where any fishing gear or equipment is forfeited under subsection 72(4), it may be disposed of immediately on its forfeiture, as the Minister directs.

Marginal note:Return of things not forfeited

• 73.1 (1) Subject to subsection (2), any fish or other thing seized under this Act, or any proceeds realized from its disposition, that are not forfeited to Her Majesty under section 72 shall, on the final conclusion of the proceedings relating to the fish or thing, be delivered to the person from whom the fish or thing was seized.

• Marginal note:Exception

  (2) Subject to subsection 72(4), where a person is convicted of an offence relating to any fish or other thing seized under this Act and the court imposes a fine but does not order forfeiture,

  • (a) the fish or thing may be detained until the fine is paid;

  • (b) it may be sold under execution in satisfaction of the fine; or

  • (c) any proceeds realized from its disposition may be applied in payment of the fine.

Marginal note:Release of seized fish

73.2 Notwithstanding anything in sections 70 to 73.1, a fishery officer or fishery guardian who seizes any fish under this Act may, at the time of the seizure, return to the water any fish that the officer or guardian believes to be alive.

Marginal note:Definitions

74 In sections 75 and 76,

court of appeal

court of appeal means, in the province in which an order under section 75 is made, the court of appeal for that province as defined in section 2 of the Criminal Code; (cour d’appel)

judge

judge means

• (a) in the Province of Quebec, a judge of the Superior Court for the district in which the thing in respect of which an application for an order under section 75 is made was seized,

• (a.1) in the Province of Ontario, a judge of the Superior Court of Justice,

• (b) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen’s Bench,

• (c) in the Province of Newfoundland and Labrador, a judge of the Trial Division of the Supreme Court,

• (c.1) [Repealed, 1992, c. 51, s. 50]

• (d) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, Yukon and the Northwest Territories, a judge of the Supreme Court, and

• (e) in Nunavut, a judge of the Nunavut Court of Justice. (juge)

Marginal note:Application by person claiming interest

• 75 (1) Where 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 thirty days after the forfeiture, apply in writing to a judge for an order pursuant to subsection (4).

• Marginal note:Date of hearing

  (2) The judge to whom an application is made pursuant to subsection (1) shall fix a day not less than thirty days after the date of filing of the application for the hearing thereof.

• Marginal note:Notice

  (3) The applicant shall serve a notice of the application and of the hearing on the Minister at least fifteen days before the day fixed for the hearing.

• Marginal note:Order by judge

  (4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,

  • (a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and

  • (b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lienholder, that he exercised such care with respect to the mortgagor or the liengiver,

  the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.

Marginal note:Appeal

• 76 (1) The applicant or the Minister may appeal to the court of appeal from an order made under subsection 75(4) and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the court of appeal from orders or judgments of a judge.

• Marginal note:Application to Minister

  (2) The Minister shall, on application made to him by any person who has obtained a final order pursuant to this section or section 75,

  • (a) except in the case of any thing disposed of under subsection 70(3), direct that the thing to which the interest of the applicant relates be returned to the applicant; or

  • (b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to him.

Marginal note:Exception

77 Sections 74 to 76 do not apply to

• (a) any fishing gear or equipment that has been disposed of pursuant to subsection 73(3); or

• (b) any fish that have been returned to the water pursuant to section 73.2.

Offence and Punishment

Marginal note:Punishment not otherwise provided for

78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of

• (a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or

• (b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.

Marginal note:Continuing offences

78.1 Where any contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separate offence for each day on which the contravention is committed or continued.

Marginal note:Offences by corporate officers, etc.

78.2 Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.

Marginal note:Offences by employers

78.3 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.

Marginal note:Offences by licence holders

78.4 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person in respect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations, whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.

Marginal note:Burden of proving licence

78.5 In any prosecution for an offence under this Act, where a question arises as to whether a person was issued a licence, the burden is on the person to establish that the licence was issued.

Marginal note:Due diligence defence

78.6 No person shall be convicted of an offence under this Act if the person establishes that the person

• (a) exercised all due diligence to prevent the commission of the offence; or

• (b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.

Marginal note:Additional fine

79 Where a person is convicted of an offence under this Act and the court is satisfied that as a result of committing the offence the person acquired monetary benefits or monetary benefits accrued to the person, the court may, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, order the person to pay an additional fine in an amount equal to the court’s finding of the amount of those monetary benefits.

Marginal note:Lease or licence cancelled, etc.

79.1 Where a person is convicted of an offence under this Act in respect of any matter relating to any operations under a lease or licence issued pursuant to this Act or the regulations, in addition to any punishment imposed, the court may, by order,

• (a) cancel the lease or licence or suspend it for any period the court considers appropriate; and

• (b) prohibit the person to whom the lease or licence was issued from applying for any new lease or licence under this Act during any period the court considers appropriate.

Marginal note:Orders of court

79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the following prohibitions, directions or requirements:

• (a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

• (b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence;

• (c) directing the person to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence;

• (d) directing the person to pay the Minister an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the commission of the offence;

• (e) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order;

• (f) directing the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat;

• (g) directing the person to post a bond or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;

• (h) directing the person to submit to the Minister, on application by the Minister within three years after the date of the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances; and

• (i) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences under this Act.

Marginal note:Suspended sentence

• 79.3 (1) Where a person is convicted of an offence under this Act and the court suspends the passing of sentence pursuant to paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order directing the person to comply with any prohibition, direction or requirement mentioned in section 79.2.

• Marginal note:Imposition of sentence

  (2) Where a person whose sentence has been suspended fails to comply with an order made under subsection (1) or is convicted, within three years after the day on which the order was made, of another offence under this Act, the court may, on the application of the Attorney General, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Marginal note:Debt due to Her Majesty

• 79.4 (1) Where the court makes an order under section 79.2 or 79.3 directing a person to pay an amount of money as compensation or for any other purpose, the amount and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.

• Marginal note:Publication

  (2) Where a person fails to comply with an order made under section 79.2 or 79.3 directing the person to publish the facts relating to the commission of an offence, the Minister may publish those facts and recover the costs of publication from the person.

• Marginal note:Idem

  (3) Where the Minister incurs publication costs under subsection (2), the amount of the costs and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.

Marginal note:Variation of orders

• 79.5 (1) A court that has made an order under section 79.2 or 79.3 may, on application by the Attorney General or the person to whom the order applies, require the person to appear before it and, after hearing the person and the Attorney General, vary the order in any of the following ways that the court considers appropriate because of a change in the circumstances of the person since the order was made:

  • (a) change the order or any prohibition, direction or requirement mentioned in the order;

  • (b) relieve the person, either absolutely or partially and for any period that the court considers appropriate, of compliance with any prohibition, direction or requirement mentioned in the order; or

  • (c) extend or decrease the period during which the order shall remain in force.

• Marginal note:Limitation

  (2) Where an application has been heard by a court under subsection (1), no other application may be made in respect of the same order except with leave of the court.

Marginal note:Offence and punishment

79.6 Every person convicted of an offence under this Act who subsequently contravenes an order made under section 79.2 or 79.3 is guilty of

• (a) an offence punishable on summary conviction and liable to a punishment not exceeding the maximum punishment to which a person is liable on summary conviction for the original offence; or

• (b) an indictable offence and liable to a punishment not exceeding the maximum punishment to which a person is liable on conviction on indictment for the original offence.

Ticketable Offences

Marginal note:Procedure

• 79.7 (1) In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any offence prescribed by regulation may be commenced by a fishery officer, fishery guardian or inspector

  • (a) completing a ticket that consists of a summons portion and an information portion;

  • (b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused’s latest known address; and

  • (c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as practicable after the summons portion has been delivered or mailed.

• Marginal note:Content of ticket

  (2) The summons and information portions of a ticket shall

  • (a) set out a description of the offence and the time and place of its alleged commission;

  • (b) include a statement, signed by the fishery officer, fishery guardian or inspector who completes the ticket, that the officer, guardian or inspector, as the case may be, has reasonable grounds to believe that the accused committed the offence;

  • (c) set out the amount of the fine prescribed by regulation for the offence and the manner in which and period within which it may be paid;

  • (d) include a statement that if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and

  • (e) include a statement that if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court and at the time set out in the ticket.

• Marginal note:Notice of forfeiture

  (3) Where any fish or other thing is seized under this Act and proceedings relating to the fish or thing are commenced by way of the ticketing procedure described in subsection (1), the fishery officer, fishery guardian or inspector who completes the ticket shall give written notice to the accused that if the accused pays the fine prescribed by regulation within the period set out in the ticket, the fish or thing, or any proceeds realized from its disposition, shall thereupon be forfeited to Her Majesty.

• Marginal note:Consequences of payment

  (4) Where an accused to whom the summons portion of a ticket is delivered or mailed pays the fine prescribed by regulation within the period set out in the ticket,

  • (a) the payment constitutes a plea of guilty to the offence described in the ticket and a conviction shall be entered against the accused and no further action shall be taken against the accused in respect of that offence; and

  • (b) notwithstanding sections 71 to 77, any fish or other thing seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, are forfeited to Her Majesty and may be disposed of as the Minister directs.

• Marginal note:Regulations

  (5) The Governor in Council may make regulations prescribing

  • (a) offences under this Act to which this section applies and the manner in which those offences may be described in tickets; and

  • (b) the amount of the fine for a prescribed offence, which amount shall not exceed one thousand dollars.

Joint Liability

Marginal note:Who shall be liable

80 Unless otherwise specified, every proprietor, owner, agent, tenant, occupier, partner or person actually in charge, either as occupant or servant, shall be deemed to be jointly and severally liable for any penalties or moneys recovered under any provision of this Act or the regulations.

81 [Repealed, 1991, c. 1, s. 25]

Limitation of Suits

Marginal note:Limitation period

82 A proceeding by way of summary conviction in respect of an offence under this Act may not be commenced later than five years after the day on which the offence was committed.

Form of Procedure

Marginal note:Form of procedure

83 Except as otherwise provided in this Act, all penalties and forfeitures incurred under this Act or any of the regulations are recoverable and enforceable by summary proceedings taken under the provisions of the Criminal Code relating to summary convictions.

Marginal note:No quashing for want of form

84 No proceeding or conviction under this Act or any of the regulations shall be set aside or quashed on certiorari or otherwise for irregularity or defect in form, and no warrant of arrest or commitment shall be held void by reason of any defect therein, if it is therein alleged that the defendant has been convicted and there is a good and valid conviction to sustain the same.

Applications of Penalties and Forfeitures

Marginal note:Penalties and forfeitures

85 The Governor in Council may prescribe the manner in which the proceeds of penalties and the proceeds of the sale of confiscated things shall be distributed.

Marginal note:Appeal in proceedings by indictment

• 86 (1) For the purpose of Part XXI of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1), subsection 72(1), (2) or (3) or section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall be considered a sentence within the meaning of section 673 of the Criminal Code.

• Marginal note:Appeal in summary conviction proceedings

  (2) For the purpose of Part XXVII of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1), subsection 72(1), (2) or (3) or section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall be considered a sentence within the meaning of section 785 of the Criminal Code.

Application of Act to Waters Other than Canadian Fisheries Waters

Marginal note:Application of Act to High Seas

• 87 (1) The provisions of this Act and the regulations that apply to any or all of Canadian fisheries waters, without anything in the context of those provisions indicating that they apply to any specified area of Canadian fisheries waters, shall, in relation to any fishing vessel or aircraft on or over the High Seas that is subject to the jurisdiction of Canada, or any act or thing done or omitted to be done on, from or by means of any such fishing vessel or aircraft, be deemed to extend and apply to the High Seas.

• Marginal note:Regulations

  (2) The Governor in Council may make regulations respecting fisheries located in waters other than Canadian fisheries waters applicable to vessels or aircraft subject to the jurisdiction of Canada.

• Marginal note:Inconsistency or conflict

  (3) Where there is any inconsistency or conflict between any regulations that apply to the High Seas by virtue of subsection (1) and any regulations made under subsection (2), the latter regulations prevail to the extent of the inconsistency or conflict, unless the context otherwise requires.

Marginal note:Jurisdiction of courts

88 All courts and justices in Canada have the same jurisdiction with respect to offences under this Act as they have under sections 257 and 258 of the Canada Shipping Act, 2001 with respect to offences under that Act, and those sections apply to offences under this Act in the same manner and to the same extent as they apply to offences under the Canada Shipping Act, 2001.

Incorporation by Reference

Marginal note:Externally produced material

• 89 (1) A regulation made under this Act may incorporate by reference material produced by a person or body other than the Minister, including by a government, a government agency or an international body.

• Marginal note:Jointly produced material

  (2) A regulation made under this Act may incorporate by reference material produced jointly by the Minister and a government or government agency for the purpose of harmonizing the regulation with other laws.

• Marginal note:Internally produced standards

  (3) A regulation made under this Act may incorporate by reference technical or explanatory material produced by the Minister, such as specifications, test methods, procedures, construction standards, operational standards, safety standards and performance standards of a technical nature.

• Marginal note:Incorporation as amended from time to time

  (4) Material may be incorporated by reference as it exists on a particular date or as it is amended from time to time.

• Marginal note:Transmission and publication

  (5) For greater certainty, a document that is incorporated by reference in a regulation is not required to be transmitted for registration or publication in the Canada Gazette by reason only that it is incorporated by reference.

• Marginal note:Interpretation

  (6) Subsections (1) to (5) do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.

Marginal note:Defence

90 A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in a regulation is relevant unless, at the time of the alleged contravention, it was accessible as required by section 91 or was accessible to the person.

Marginal note:Accessibility of incorporated documents

91 The Minister shall ensure that any document that is incorporated by reference under subsection 89(1) is accessible.