Marine Transportation Security Regulations (SOR/2004-144)

Minister’s Decision

509 The Minister may grant a transportation security clearance if, in the opinion of the Minister, the information provided by the applicant and that resulting from the checks and verifications is verifiable and reliable and is sufficient for the Minister to determine, by an evaluation of the following factors, to what extent the applicant poses a risk to the security of marine transportation:

• (a) the relevance of any criminal convictions to the security of marine transportation, including a consideration of the type, circumstances and seriousness of the offence, the number and frequency of convictions, the length of time between offences, the date of the last offence and the sentence or disposition;

• (b) whether it is known or there are reasonable grounds to suspect that the applicant

  • (i) is or has been involved in, or contributes or has contributed to, activities directed toward or in support of the misuse of the transportation infrastructure to commit criminal offences or the use of acts of violence against persons or property, taking into account the relevance of those activities to the security of marine transportation,

  • (ii) is or has been a member of a terrorist group within the meaning of subsection 83.01(1) of the Criminal Code, or is or has been involved in, or contributes or has contributed to, the activities of such a group,

  • (iii) is or has been a member of a criminal organization as defined in subsection 467.1(1) of the Criminal Code, or participates or has participated in, or contributes or has contributed to, the activities of such a group as referred to in subsection 467.11(1) of the Criminal Code taking into account the relevance of these factors to the security of marine transportation,

  • (iv) is or has been a member of an organization that is known to be involved in or to contribute to — or in respect of which there are reasonable grounds to suspect involvement in or contribution to — activities directed toward or in support of the threat of or the use of, acts of violence against persons or property, or is or has been involved in, or is contributing to or has contributed to, the activities of such a group, taking into account the relevance of those factors to the security of marine transportation, or

  • (v) is or has been associated with an individual who is known to be involved in or to contribute to — or in respect of whom there are reasonable grounds to suspect involvement in or contribution to — activities referred to in subparagraph (i), or is a member of an organization or group referred to in any of subparagraphs (ii) to (iv), taking into account the relevance of those factors to the security of marine transportation;

• (c) whether there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security;

• (d) whether the applicant has had a restricted area pass for a marine facility, port or aerodrome removed for cause; and

• (e) whether the applicant has filed fraudulent, false or misleading information relating to their application for a transportation security clearance.

510 If a criminal charge is outstanding against the applicant that could, if the applicant were convicted, be considered by the Minister under paragraph 509(a), the Minister may decline to process the application until the charge has been disposed of by the courts, in which case the Minister shall advise the applicant in writing.

• 511 (1) If the Minister intends to refuse to grant a transportation security clearance, the Minister shall advise the applicant in writing to that effect.

• (2) The notice shall set out the basis for the Minister’s intention and fix a period of time for the applicant to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.

• (3) The Minister shall not refuse to grant a transportation security clearance until the written representations have been received and considered or before the period of time fixed in the notice has expired, whichever comes first. The Minister shall advise the applicant in writing of any refusal.

Validity of Clearances

• 512 (1) The Minister shall establish a period of validity for a transportation security clearance in accordance with the level of risk posed by the applicant determined under section 509, but the period shall not exceed five years.

• (2) If the validity period is less than five years, the Minister may extend the period to a total of five years if the Minister determines under section 509 that the holder does not pose a risk to the security of marine transportation.

• (3) If a transportation security clearance is suspended and subsequently reinstated, the end of the validity period remains the same as that established at the time of issuance.

Suspension, Reinstatement or Cancellation of Clearances

513 A marine facility operator or port administration shall immediately notify the Minister in writing when the holder of a transportation security clearance is no longer required by these Regulations to be the holder of a transportation security clearance.

514 A marine facility operator or port administration shall immediately notify the Minister in writing when they suspend or cancel, for security reasons, a restricted area pass issued to a holder of a transportation security clearance.

• 515 (1) The Minister may suspend a transportation security clearance on receipt of information that could change the Minister’s determination made under section 509.

• (2) Immediately after suspending a transportation security clearance, the Minister shall advise the holder in writing of the suspension.

• (3) The notice shall set out the basis for the suspension and shall fix a period of time for the holder to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.

• (4) The Minister may reinstate the transportation security clearance if the Minister determines under section 509 that the holder does not pose a risk to marine transportation security.

• (5) The Minister may cancel the transportation security clearance if the Minister determines under section 509 that the holder may pose a risk to marine transportation security or that the transportation security clearance is no longer required. The Minister shall advise the holder in writing of any cancellation.

• (6) The Minister shall not cancel a transportation security clearance until the written representations have been received and considered or before the time period fixed in the notice has expired, whichever comes first.

New Applications

516 If the Minister refuses to grant or cancels a transportation security clearance, an applicant may submit a new application only if

• (a) a period of five years has elapsed after the day of the refusal or cancellation; or

• (b) a change has occurred in the circumstances that led to the refusal or cancellation.

Reconsideration

• 517 (1) An applicant or a holder may request that the Minister reconsider a decision to refuse to grant or to cancel a transportation security clearance within 30 days after the day of the service or sending of the notice advising them of the decision.

• (2) The request shall be in writing and shall set out the following:

  • (a) the decision that is the subject of the request;

  • (b) the grounds for the request, including any new information that the applicant or holder wishes the Minister to consider; and

  • (c) the name, address, and telephone and facsimile numbers of the applicant or holder.

• (3) On receipt of a request made in accordance with this section, the Minister, in order to determine the matter in a fair, informal and expeditious manner, shall give the applicant or holder

  • (a) where the situation warrants, the opportunity to make representations orally or in any other manner; and

  • (b) in any other case, a reasonable opportunity to make written representations.

• (4) After representations have been made or a reasonable opportunity to do so has been provided, the Minister shall reconsider the decision in accordance with section 509 and shall subsequently confirm or change the decision.

• (5) The Minister may engage the services of persons with appropriate expertise in security matters to advise the Minister.

• (6) The Minister shall advise the applicant or holder in writing of the decision made following the reconsideration.

Notices

518 The Minister shall send to the person at their last known address, by personal service or registered mail, any notices to be given under this Part.

False Applications

519 No person shall knowingly file with the Minister a fraudulent application or an application containing false or misleading information in order to obtain a transportation security clearance.

[520 to 599 reserved]

PART 6Contravention of Provisions Designated as Violations

[600 reserved]

Violations

• 601 (1) The contravention of a provision of the Act set out in column 1 of an item of Schedule 2 is designated a violation that may be proceeded with in accordance with sections 33 to 46, 49 and 50 of the Act.

• (2) For each violation designated under subsection (1)

  • (a) the penalty or range of penalties for

    • (i) an individual is set out in column 2, and

    • (ii) a corporation is set out in column 3; and

  • (b) if an “X” appears in column 4, the violation constitutes a separate violation for each day on which it is continued.

• 602 (1) The contravention of a provision of these Regulations set out in column 1 of an item of Schedule 3 is designated a violation that may be proceeded with in accordance with sections 33 to 46, 49 and 50 of the Act.

• (2) For each violation designated under subsection (1),

  • (a) the penalty or range of penalties for

    • (i) an individual is set out in column 2, and

    • (ii) a corporation is set out in column 3; and

  • (b) if an “X” appears in column 4, the violation constitutes a separate violation for each day on which it is continued.

PART 7Notice and Service of Documents

[700 reserved]

Service of Documents

• 701 (1) This section applies to the following documents:

  • (a) a notice of violation referred to in paragraph 33(1)(b) of the Act;

  • (b) a notice of compliance referred to in section 35 of the Act;

  • (c) a notice of default referred to in subsection 36(1) of the Act;

  • (d) a notice of refusal to issue a certificate of proficiency referred to in subsection 802(2); and

  • (e) a notice of suspension or cancellation referred to in subsection 14(2) or 805(1).

• (2) A document may be served on an individual by

  • (a) giving a copy to the individual;

  • (b) giving a copy to someone who appears to be an adult member of the same household at the last known address or usual place of residence of the individual; or

  • (c) sending a copy by registered mail or courier to the last known address or usual place of residence of the individual or by facsimile transmission to the last facsimile number provided.

• (3) A document may be served on a person other than an individual by

  • (a) giving a copy to one of the person’s officers or agents at the person’s head office or place of business; or

  • (b) sending a copy by registered mail or courier to the head office or place of business of the person or their agent or by facsimile transmission to the last facsimile number provided.

• (4) A document that is served by facsimile transmission shall include a cover page setting out

  • (a) the name and address and telephone and facsimile numbers of the sender;

  • (b) the date and time of transmission;

  • (c) the total number of pages transmitted, including the cover page; and

  • (d) the name and telephone number of a person to contact in the event of transmission problems, if they differ from those provided for the sender.

• (5) A document that is served by

  • (a) registered mail is deemed to have been served on the fourth day after the day on which it was sent; and

  • (b) facsimile transmission is deemed to have been served on the day after the day on which it was sent.

• (6) Proof of service of a document may be made by showing

  • (a) in the case of a document transmitted by facsimile, a proof of transmission produced by the facsimile machine that sets out the date and time of transmission; or

  • (b) in any other case, an acknowledgement of service signed by or on behalf of the person served, specifying the date and place of service.