Migratory Birds Convention Act, 1994 (S.C. 1994, c. 22)

Marginal note:Search and seizure without warrant

8 For the purpose of ensuring compliance with this Act and the regulations, a game officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code without a search warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be feasible to obtain it.

Marginal note:Powers of direction and detention of vessels

• 8.1 (1) A game officer may direct a vessel to any place in Canadian waters or the exclusive economic zone of Canada or make a detention order in relation to a vessel or do both, if they have reasonable grounds to believe that the vessel or a person on board the vessel has committed, is committing or is about to commit an offence under section 5.1 in Canadian waters and that the vessel was, is being or is about to be used in connection with the commission of the offence.

• Marginal note:Powers of direction and detention of vessels

  (2) A game officer may direct a vessel to any place in Canadian waters or the exclusive economic zone of Canada or make a detention order in relation to a vessel or do both, if they have reasonable grounds to believe that

  • (a) the vessel or a person on board the vessel has committed, is committing or is about to commit an offence under section 5.1 in the exclusive economic zone of Canada and the vessel was, is being or is about to be used in connection with the commission of the offence; and

  • (b) commission of the offence will cause major damage to the environment, or an actual threat of major damage to the environment, in Canada or in the exclusive economic zone of Canada.

• Marginal note:Major damage

  (3) For greater certainty, the deposit of a substance in contravention of section 5.1 that, together with other deposits made in contravention of that section by one or more persons or vessels, has a cumulative or aggregate effect may cause major damage to the environment.

• Marginal note:Order in writing

  (4) A detention order shall be in writing and be addressed to every person at the place identified in the order who is empowered to give a clearance to the vessel.

• Marginal note:Service of order

  (5) Notice of the detention order shall be served by delivering a copy of the notice personally to the master or, if service cannot reasonably be effected personally, by posting a copy of the notice on a conspicuous part of the vessel.

• Marginal note:Duty of operator of vessel

  (6) Once notice of the detention order is served, no master, owner or operator of the vessel shall order the vessel to contravene the order.

• Marginal note:Duty of persons empowered to give clearance

  (7) Subject to subsection (8), no person who has received notice of the detention order shall give clearance to the vessel to which the order relates.

• Marginal note:When clearance may be given

  (8) A person who has received notice of the detention order may give clearance to the vessel to which the order relates if

  • (a) neither the vessel nor any person is charged with the offence that gave rise to the making of the order within 30 days after the day on which the order is made;

  • (b) within 30 days after the day on which the order is made, the vessel or a person is charged with the offence and every accused has appeared in Canada to answer to the charge;

  • (c) Her Majesty in right of Canada is given security, in a form determined by the Attorney General of Canada, for payment of the maximum fine that might be imposed as a result of a conviction of every accused and costs that might be incurred in proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Attorney General of Canada;

  • (d) all proceedings in respect of the offence that gave rise to the making of the order are discontinued; or

  • (e) the order is rescinded by a game officer.

• Marginal note:Consent of Attorney General of Canada

  (9) The powers to direct and detain a vessel may not be exercised in the exclusive economic zone of Canada in relation to a foreign vessel without the consent of the Attorney General of Canada.

• Marginal note:Foreign state to be notified

  (10) If a vessel to which a detention order relates is registered in a foreign state, that state is to be notified that the order was made.

Marginal note:Right of passage

8.2 A person who is engaged in carrying out duties or functions under this Act and any person acting under their direction and control may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.

Marginal note:Assistance

8.3 An owner, operator or person in charge or control of a place entered by a game officer under this Act, and every person found in the place, shall

• (a) give the game officer and every person under their direction and control all reasonable assistance to enable the game officer to carry out their duties and functions under this Act; and

• (b) provide the game officer and every person under their direction and control with any information relating to the administration of this Act and the regulations that the game officer may reasonably require.

Marginal note:Custody of things seized

• 9 (1) Subject to subsections (2) and (3), where a game officer seizes a thing under this Act or under a warrant issued under the Criminal Code,

  • (a) sections 489.1 and 490 of the Criminal Code apply; and

  • (b) the game officer, or any person that the officer may designate, shall retain custody of the thing subject to any order made under section 490 of the Criminal Code.

• Marginal note:Forfeiture where ownership not ascertainable

  (2) Where the lawful ownership of or entitlement to the seized thing cannot be ascertained within thirty days after its seizure, the thing, or any proceeds of its disposition, are forfeited to

  • (a) Her Majesty in right of Canada, if the thing was seized by a game officer employed in the federal public administration; or

  • (b) Her Majesty in right of a province, if the thing was seized by a game officer employed by the government of that province.

• Marginal note:Perishable things

  (3) Where the seized thing is perishable, the game officer may dispose of it or destroy it, and any proceeds of its disposition must be

  • (a) paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are instituted within ninety days after its seizure; or

  • (b) retained by the game officer pending the outcome of the proceedings.

• Marginal note:Abandonment

  (4) The lawful owner of the seized thing may abandon it to Her Majesty in right of Canada or a province.

Marginal note:Disposition by Minister

10 Any thing that has been forfeited or abandoned under this Act must be dealt with and disposed of as the Minister may direct.

Marginal note:Liability for costs

11 If a thing is seized under this Act or under a warrant issued under the Criminal Code, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.

Marginal note:Delegation by Minister

11.1 The Minister may delegate to any minister of the Crown in right of Canada or of a province or to any person who is employed by the Government of Canada, the government of a province or any other government in Canada any power conferred on the Minister under this Act relating to its enforcement or the issuance, renewal, revocation and suspension of permits. The minister or other person to whom the power is delegated may then exercise the power subject to any terms and conditions that the Minister specifies.

Marginal note:Definition of order

11.2 For the purpose of sections 11.21 to 11.3, order means a compliance order issued under section 11.21.

Marginal note:Compliance order

• 11.21 (1) Whenever, during the course of an inspection or a search, a game officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person that is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the game officer may issue a compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection and conservation of migratory birds and their nests and with public safety in order to cease or refrain from committing the alleged contravention.

• Marginal note:Persons subject to order

  (2) Subsection (1) applies to any person who

  • (a) owns or has the charge, management or control of the substance to which the alleged contravention relates or the property on which the substance is located;

  • (b) causes or contributes to the alleged contravention; or

  • (c) is likely to cause or contribute to the alleged contravention.

• Marginal note:Specific measures

  (3) The order may specify that the person to whom the order is directed take one or more of the following measures:

  • (a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

  • (b) stop or shut down any activity, work, undertaking or thing for a specified period;

  • (c) cease the operation of any activity or any part of a work, undertaking or thing until the game officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

  • (d) move any conveyance to another location including, in the case of a vessel, moving the vessel into port or, in the case of an aircraft, landing the aircraft;

  • (e) unload or reload the contents of any conveyance; and

  • (f) take any other measure that the game officer considers necessary to facilitate compliance with the order or to protect or restore migratory birds or their nests, including

    • (i) maintaining records on any relevant matter,

    • (ii) reporting periodically to the game officer, and

    • (iii) submitting to the game officer any information, proposal or plan specified by the game officer that sets out any action to be taken by the person with respect to the subject matter of the order.

• Marginal note:Contents of order

  (4) Subject to section 11.22, an order must be made in writing and must set out

  • (a) the name of the person or persons to whom the order is directed;

  • (b) the provision of this Act or the regulations that is alleged to have been or is likely to be contravened;

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

  • (d) the measures to be taken;

  • (e) the time or the day when each measure is to begin or the period during which it is to be carried out;

  • (f) subject to subsection (5), the duration of the order;

  • (g) a statement that a request for a review may be made to the Chief Review Officer; and

  • (h) the period within which a request for a review may be made.

• Marginal note:Duration of order

  (5) An order may not be in force for a period of more than 180 days.

• Marginal note:Failing to file report

  (6) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed.

• Marginal note:Statutory Instruments Act

  (7) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.

Marginal note:Exigent circumstances

• 11.22 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 11.21.

• Marginal note:Definition of exigent circumstances

  (2) For greater certainty, exigent circumstances includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 11.21(4) would result in danger to human life or the environment, including migratory birds.

Marginal note:Notice of intent

• 11.23 (1) Except in exigent circumstances, a game officer shall, whenever practicable, before issuing an order,

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (2) The notice of intent to issue the order must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the order is to be issued; and

  • (c) a statement that the party notified may make oral representations to the game officer within the period stated in the notice.

Marginal note:Compliance with order

• 11.24 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it, or on being directed by a game officer in an order given orally under subsection 11.22(1), comply with the order.

• Marginal note:No bar to proceedings

  (2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.