An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999 (S.C. 2005, c. 23)
Full Document:
Assented to 2005-05-19
An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999
S.C. 2005, c. 23
Assented to 2005-05-19
An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999
SUMMARY
This enactment amends the Migratory Birds Convention Act, 1994 to
(a) state that that Act applies in the exclusive economic zone of Canada;
(b) protect migratory birds from the effects caused by deposits of harmful substances, such as oil, in the exclusive economic zone of Canada;
(c) state that that Act applies to vessels and their owners and operators;
(d) subject masters, chief engineers, owners and operators of vessels and directors and officers of corporations to a duty of care to ensure compliance with that Act and its regulations;
(e) expand the enforcement powers to include orders to direct and detain vessels found to be in contravention of that Act or its regulations;
(f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada;
(g) increase penalties; and
(h) permit courts to impose additional punishments in the form of orders covering matters such as environmental audits, community service and the creation of scholarships for students enrolled in environmental studies.
This enactment also amends the Canadian Environmental Protection Act, 1999 to
(a) protect the marine environment from the wrongful activities of ships as well as persons;
(b) include prohibitions concerning the disposal and incineration of substances at sea by ships;
(c) include regulation-making authority to deal with disposals of substances during the normal operations of ships, aircrafts, platforms and other structures;
(d) expand the enforcement powers to include orders to direct ships found to be in contravention of that Act or its regulations;
(e) subject owners of ships and directors and officers of corporations that own ships to a duty of care to ensure that ships comply with the provisions of that Act and its regulations concerning disposal at sea and with orders and directions made under that Act; and
(f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1994, c. 22MIGRATORY BIRDS CONVENTION ACT, 1994
1. (1) The definition “conveyance” in subsection 2(1) of the Migratory Birds Convention Act, 1994 is replaced by the following:
“conveyance”
« moyen de transport »
“conveyance” means a vehicle, aircraft, vessel or any other contrivance that is used to move persons or goods;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Canadian vessel”
« bâtiment canadien »
“Canadian vessel” means a vessel that
(a) is registered, listed or licensed under the Canada Shipping Act,
(b) is not registered, listed or licensed under the Canada Shipping Act or under the laws of another state but is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) in the case of a vessel that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or
(iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada, or
(c) is not registered, listed or licensed under the Canada Shipping Act but is owned or operated by Her Majesty in right of Canada;
“deposit”
« immersion ou rejet »
“deposit” means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing;
“environment”
« environnement »
“environment” means the components of the Earth and includes
(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include the components referred to in paragraphs (a) to (c);
“fixed platform”
« plate-forme fixe »
“fixed platform” means an artificial island or a marine installation or structure that is permanently attached to the seabed for the purpose of exploration or exploitation of resources or for other economic purposes;
“foreign national”
« étranger »
“foreign national” has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act;
“foreign vessel”
« bâtiment étranger »
“foreign vessel” means a vessel that is not a Canadian vessel;
“master”
« capitaine »
“master” means every person who has command or charge of a vessel, but does not include a licensed pilot within the meaning of section 2 of the Pilotage Act;
“operator”
« exploitant »
“operator”, in respect of a vessel, means a person other than an owner who has, either by law or by contract, the possession and use of the vessel;
“owner”
« propriétaire »
“owner”, in respect of a vessel, means an actual owner of the vessel if the vessel is not registered or listed, or a registered owner if it is registered or listed;
“vessel”
« bâtiment »
“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform.
2. The Act is amended by adding the following after section 2:
APPLICATION
Marginal note:Application
2.1 This Act applies in Canada and in the exclusive economic zone of Canada.
3. Section 4 of the Act and the heading that follows it are replaced by the following:
Marginal note:Purpose
4. The purpose of this Act is to implement the Convention by protecting and conserving migratory birds — as populations and individual birds — and their nests.
PROHIBITIONS
4. The Act is amended by adding the following after section 5:
Marginal note:Prohibition
5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.
Marginal note:Prohibition
(2) No person or vessel shall deposit a substance or permit a substance to be deposited in any place if the substance, in combination with one or more substances, results in a substance — in waters or an area frequented by migratory birds or in a place from which it may enter such waters or such an area — that is harmful to migratory birds.
Marginal note:Saving
(3) Subsections (1) and (2) do not apply if
(a) the deposit is authorized under the Canada Shipping Act; or
(b) the substance is of a type and quantity, and the deposit is made under conditions, authorized under an Act of Parliament other than the Canada Shipping Act, or authorized by the Minister for scientific purposes.
Marginal note:Prohibition
5.2 No person shall
(a) wilfully destroy or cause to be destroyed a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, or wilfully alter or cause to be altered such a document, a record or data with intent to mislead;
(b) make or cause to be made a false entry, or omit to make or cause to be omitted to be made a required entry, in a document, a record or data that is required to be kept under this Act or the Canada Shipping Act;
(c) wilfully obstruct or hinder a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control; or
(d) knowingly provide false or misleading information or knowingly make a false or misleading statement, either orally or in writing, to a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control.
Marginal note:Prohibition
5.3 (1) No Canadian employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, because
(a) the employee, acting in good faith and on the basis of reasonable belief, disclosed to a federal minister, or any employee of the public service of Canada, that the employer or another person had contravened or had intended to contravene a provision of this Act or the regulations;
(b) the employee, acting in good faith and on the basis of reasonable belief, refused or stated an intention to refuse to do anything that is a contravention of a provision of this Act or the regulations;
(c) the employee, acting in good faith and on the basis of reasonable belief, did or stated an intention to do anything that is required to be done to prevent a contravention of a provision of this Act or the regulations; or
(d) the employer believes that the employee will do anything referred to in paragraph (a), (b) or (c).
Definition of “Canadian employer”
(2) In subsection (1), “Canadian employer” means an employer that is a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated under the laws of Canada or a province that has its principal place of business in Canada.
Marginal note:Saving
(3) Nothing in this section impairs any right of an employee either at law or under an employment contract or collective agreement.
Definitions of “employee” and “employer”
(4) In this section, “employee” includes an independent contractor and “employer” has a corresponding meaning.
OBLIGATIONS
Marginal note:Obligation — owners, operators, etc.
5.4 Every master, chief engineer, owner and operator of a vessel — and, if the owner or operator is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by section 5.1 — shall take all reasonable care to ensure that the vessel and all persons on board the vessel comply with section 5.1.
Marginal note:Obligation — directors and officers
5.5 Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act and the regulations.
5. (1) Subsection 6(3) of the Act is replaced by the following:
Marginal note:Certificate of designation
(3) Every game officer must be provided with a certificate of designation as a game officer in a form approved by the Minister and, on entering any place under this Act, the officer shall, on request, show the certificate to the person in charge or control of the place.
(2) Subsection 6(6) of the Act is replaced by the following:
Marginal note:Arrest without warrant
(6) A game officer may arrest a person without a warrant if they believe, on reasonable grounds, that the person has committed an offence under this Act or if they find the person committing or about to commit an offence under this Act.
6. (1) The portion of subsection 7(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Inspections
7. (1) For the purpose of verifying compliance with this Act and the regulations, a game officer may, subject to subsection (3), at any reasonable time, enter and inspect any place, including a vessel, in which they believe, on reasonable grounds, there is any thing to which this Act or the regulations apply or any document, record or data relating to the administration of this Act or the regulations, and the game officer may
(2) Subsection 7(1) of the Act is amended by striking out the word “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(c.1) use or cause to be used any computer system or data processing system at the place to examine any data contained in or available to the system;
(c.2) reproduce or cause to be reproduced any record from the data in the form of a printout or other intelligible output;
(c.3) take a printout or other output for inspection or copying;
(c.4) use or cause to be used any copying equipment at the place to make copies of the record or document; and
(3) Subsections 7(2) to (4) of the Act are replaced by the following:
Marginal note:Duty of person in charge or control
(1.1) Every person who is in charge or control of a place that is inspected under this section shall permit a game officer and every person acting under their direction and control to do anything referred to in paragraphs (1)(c.1) to (c.4).
Marginal note:Entry of vessels
(1.2) Subject to subsection (3), for the purpose of verifying compliance with this Act and the regulations, a game officer who believes on reasonable grounds that a vessel has on board any thing to which this Act or the regulations apply or any document, record or data relating to the administration of this Act or the regulations may, in Canadian waters or the exclusive economic zone of Canada, board the vessel at any reasonable time and travel on it.
Marginal note:Accommodation
(1.3) A game officer and every person acting under their direction and control who travels on a vessel shall be carried free of charge, and the master shall provide them with suitable accommodation and food free of charge.
Marginal note:Stopping and detaining conveyances
(2) A game officer may, at any reasonable time, direct that a conveyance be stopped or be moved to a place where an inspection can be carried out and may, for a reasonable time, detain a conveyance.
Marginal note:Dwelling-place
(3) The game officer may not enter a dwelling-place except with the consent of the person in charge or control of the dwelling-place or under the authority of a warrant.
Marginal note:Inspection warrant — dwelling place
(4) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a game officer to enter a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the conditions for entry described in subsection (1) exist in relation to the dwelling-place;
(b) entry to the dwelling-place is necessary for the administration of this Act or the regulations;
(c) entry to the dwelling-place has been refused or there are reasonable grounds to believe that entry will be refused; and
(d) all reasonable attempts have been made to notify the owner or person in charge or control of the dwelling-place.
Marginal note:Inspection warrant — non-dwellings
(5) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a game officer to enter a place other than a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the conditions for entry described in subsection (1) exist in relation to the place;
(b) entry to the place is necessary for the administration of this Act or the regulations;
(c) entry to the place has been refused, there are reasonable grounds to believe that entry will be refused, the game officer is not able to enter without the use of force or the place is abandoned; and
(d) all reasonable attempts have been made to notify the owner, operator or person in charge or control of the place.
Marginal note:Waiving notice
(6) The justice may waive the requirement to give notice under paragraph (4)(d) or (5)(d) if the justice is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge or control is absent from the justice’s jurisdiction, or that it is not in the public interest to give the notice.
Marginal note:Person under direction and control
(7) A person who is acting under a game officer’s direction and control may accompany a game officer who is inspecting a place under this section, may enter the place and may exercise any of the powers referred to in paragraphs (1)(b) to (c.4).
Marginal note:Use of force
(8) A game officer may not use force in executing a warrant under this section unless the warrant specifically authorizes the use of force.
Marginal note:Exclusive economic zone
(9) Every power that may be exercised in Canada under this section may be exercised in the exclusive economic zone of Canada.
Marginal note:Consent
(10) The consent of the Minister is required for the exercise of any power under this section in the exclusive economic zone of Canada in relation to a foreign vessel. However, for greater certainty, the consent of the Attorney General of Canada is not required.
7. Section 8 of the Act is replaced by the following:
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.
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