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Search
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| Warrant
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127. (1) A fishery officer with a warrant
issued under subsection (2) may, for the
purpose of seizing any fish or other thing
under section 131, enter and search any place,
including any premises, vessel or vehicle, in
which the officer believes on reasonable
grounds there is
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(a) an activity, work or undertaking that is
being or has been carried on in
contravention of this Act or the regulations;
or
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(b) any fish or other thing referred to in
section 131.
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| Authority to
issue warrant
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(2) A justice who on ex parte application is
satisfied by information on oath that there are
reasonable grounds to believe that there is
being carried on in any place any activity,
work or undertaking referred to in paragraph
(1)(a) or that there is any fish or other thing
referred to in paragraph (1)(b) may issue a
warrant authorizing the fishery officer named
in it to enter the place and search for and seize
the fish or other thing, subject to any
conditions that may be specified in the
warrant.
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| Where
warrant not
necessary
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128. A fishery officer may exercise the
powers referred to in section 127 without a
warrant if the conditions for obtaining a
warrant exist but, by reason of exigent
circumstances, it would not be practical to
obtain a warrant.
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| Powers during
search
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129. In carrying out a search of a place
under section 127 or 128, a fishery officer may
exercise the powers described in section 123.
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| Entry
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130. A fishery officer or fishery guardian or
any person acting under the authority of a
fishery officer or fishery guardian may, while
carrying out an inspection or search under this
Act, enter on and pass through or over private
property without being liable for trespass or, in
Quebec, without the owner of the property
having the right to object to that use of the
property.
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Seizure
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| Seizure
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131. A fishery officer or fishery guardian
may seize
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(a) any fish or other thing, including a
vessel or vehicle, that the officer or
guardian believes on reasonable grounds
was obtained by or used in, or will afford
evidence in respect of, the commission of
an offence or a violation under this Act; or
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(b) any fish that the officer or guardian
believes on reasonable grounds
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(i) was caught, killed, processed,
transported, purchased, sold or possessed
in contravention of this Act or the
regulations, or
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(ii) has been intermixed with fish referred
to in subparagraph (i).
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| Release of
seized fish
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132. Notwithstanding sections 133 to 152,
a fishery officer or fishery guardian who
seizes any fish under this Act may, at the time
of the seizure or within a reasonable time
thereafter, return to the water any fish that the
officer or guardian believes to be alive.
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| Retention of
seized things
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133. (1) A fishery officer or fishery
guardian who seizes any fish or other thing
under this Act may retain it or deliver it into
the custody of any person the officer or
guardian considers appropriate.
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| Examination
or delivery
into custody
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(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.
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| Perishables
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134. A fishery officer or fishery guardian
who has custody of any fish or other thing
seized under this Act that is perishable or
susceptible to deterioration may dispose of it
in the prescribed manner, and the proceeds of
the disposition shall be paid to the Receiver
General.
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| Return of
seized things
on deposit of
security
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135. Subject to section 132, the court, in the
case of proceedings for an offence under this
Act, or a Tribunal, in the case of proceedings
in relation to a violation, may order that any
fish or other thing that is seized under this Act
and that has not been forfeited be returned to
the holder or, where there is no holder, to the
person from whom it was seized, if security is
given to Her Majesty in right of Canada in a
form and amount that is satisfactory to the
court or the Tribunal, as the case may be.
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Retention of Seized Things
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| Return of
seized things
where no
proceeding
begun
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136. (1) Subject to this section and section
132, any fish or other thing seized under this
Act or any proceeds realized from its
disposition shall, within a period of ninety
days after the day of the seizure, be returned
to the holder or, where there is no holder, to the
owner or the person from whom it was seized.
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| Seized things
retained
where
proceeding
begun
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(2) Any fish or other thing or proceeds
referred to in subsection (1) may be retained
until it or the proceeds are forfeited or the
proceeding is finally concluded, if, before the
expiration of the period referred to in that
subsection,
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(a) proceedings are commenced in relation
to an offence under this Act; or
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(i) a fish referred to in paragraph 131(b),
a notice of major violation referred to in
section 102, notice of election referred to
in section 103 or notice of the assessment
of a monetary penalty referred to in
section 106 in relation to the fish is
completed and served, or
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(ii) any other fish or other thing, a notice
of major violation referred to in section
102 or notice of election referred to in
section 103 in relation to that fish or thing
is completed and served.
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| Order to
extend
retention of
things seized
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(3) Where the court or Tribunal, as the case
may be, is satisfied, on the application of the
Minister, in the case of proceedings with
respect to an offence, or a case presentation
officer, in the case of proceedings with respect
to a violation, within the period referred to in
subsection (1), that retention of the fish or
thing for a longer period is justified in the
circumstances, the court or Tribunal may
make an order permitting the fish or thing to
be retained for any further period that may be
specified by it.
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Forfeiture and Disposition
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| Proceedings
in relation to
offence
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137. (1) Where a person or fishing vessel is
convicted of an offence under this Act, the
court shall, in addition to any other
punishment imposed, order the forfeiture to
Her Majesty in right of Canada of any fish that
was seized under this Act and that was caught,
killed, processed, transported, purchased, sold
or possessed in contravention of this Act or the
regulations, or any proceeds realized from its
disposition.
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| Forfeiture of
things used to
commit
offence
|
(2) Where a person or fishing vessel is
convicted of an offence under this Act, the
court may, in addition to any other punishment
imposed, order the forfeiture to Her Majesty in
right of Canada of any thing that was seized
under this Act and that was obtained by or used
in the commission of the offence, or any
proceeds realized from its disposition.
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| Forfeiture
where no
conviction
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(3) Where a person or fishing vessel is not
convicted of an offence under this Act, the
court may nevertheless order the forfeiture to
Her Majesty in right of Canada of any fish that
was seized under this Act and that is
established to have been caught, killed,
processed, transported, purchased, sold or
possessed in contravention of this Act or the
regulations, or of any proceeds realized from
its disposition.
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| Proceedings
in relation to
violation
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138. (1) The Tribunal, on allowing a
proceeding with respect to a major violation or
confirming the assessment of a monetary
penalty for a minor violation, shall order the
forfeiture to Her Majesty in right of Canada of
any fish that was seized under this Act and that
was caught, killed, processed, transported,
purchased, sold or possessed in contravention
of this Act or the regulations, or any proceeds
realized from its disposition.
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| Forfeiture of
things used to
commit
violation
|
(2) The Tribunal, on allowing a proceeding
with respect to a major violation, may order
the forfeiture to Her Majesty in right of
Canada of any thing that was seized under this
Act and that was obtained by or used in the
commission of the major violation, or any
proceeds realized from its disposition.
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| Forfeiture
where
proceedings
dismissed
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(3) The Tribunal, on dismissing a
proceeding referred to in subsection (1), may
nevertheless order the forfeiture to Her
Majesty in right of Canada of any fish that was
seized under this Act and that is established to
have been caught, killed, processed,
transported, purchased, sold or possessed in
contravention of this Act or the regulations, or
of any proceeds realized from its disposition.
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| Notice of
forfeiture
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139. Where a fishing vessel is forfeited in
relation to an offence, the Minister, or, where
a fishing vessel is forfeited in relation to a
violation, a case presentation officer, shall
forthwith give notice of the forfeiture to the
owner of the fishing vessel, a person holding
any maritime lien against the fishing vessel
and a person holding any like interest, known
to the Minister at the time of the giving of the
notice.
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| Forfeiture
where
ownership not
ascertainable
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140. (1) Subject to section 132, 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 in right of
Canada.
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| Exception
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(2) Notwithstanding section 142, any
fishing gear or equipment that is forfeited
under subsection (1) may be disposed of
immediately on its forfeiture, in such a
manner as the Minister directs.
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| Forfeiture on
consent
|
141. (1) Where the person from whom any
fish was seized under this Act consents to its
forfeiture, the fish is thereupon forfeited to
Her Majesty in right of Canada.
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| Disposition of
forfeited fish
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(2) Any fish that is forfeited under
subsection (1) may be disposed of
immediately on its forfeiture, in such a
manner as the Minister directs.
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| Disposition of
forfeited
things
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142. Subject to sections 144 to 152, any fish
or other thing, or any proceeds realized from
its disposition, forfeited under this Act shall be
disposed of after the final conclusion of the
proceedings in relation to the forfeiture, in
such a manner as the Minister directs.
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| Return of
things not
forfeited
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143. (1) Subject to subsection (2), any fish
or other thing that is seized under this Act, or
any proceeds realized from its disposition, and
that is not forfeited shall, after the final
conclusion of the proceedings in relation to
the fish or thing, be returned to the person from
whom the fish or thing was seized.
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| Exception
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(2) A fish or other thing that is seized in
connection with the commission of an offence
or violation may be
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(a) retained until any fine, monetary
penalty or amount that constitutes a debt
due to Her Majesty in right of Canada under
subsection 118(1) or 177(1) in relation to
the offence or violation is paid; or
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(b) sold or otherwise disposed of in
satisfaction of the fine, monetary penalty or
debt referred to in paragraph (a), and any
proceeds realized from its disposition may
be applied in payment thereof.
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Relief from Forfeiture
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| Application
by person
claiming
interest
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144. (1) Where any thing, other than fishing
gear or equipment that has been disposed of
pursuant to subsection 140(2) or fish, is
forfeited, any person who claims an interest in
the thing may, within a period of thirty days
after receiving the notice of forfeiture, apply
for an order under section 147 to the superior
court of the province in which the seizure took
place or that has jurisdiction with respect to
the seizure pursuant to section 9 of the
Canadian Laws Offshore Application Act.
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| Extension
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(2) On the application of any person entitled
to make an application under subsection (1),
the court may extend the period within which
the person may make an application under that
subsection by any amount of time the court
considers appropriate.
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| Date of
hearing
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(3) A day not less than thirty days after the
date of filing of the application under
subsection (1) shall be fixed for the hearing of
the application.
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| Notice
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(4) The applicant shall serve a notice of the
application under subsection (1) and of the
hearing of it on the Attorney General of
Canada at least fifteen days before the day
fixed for the hearing.
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| Return where
security given
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145. The Minister may, at any time after an
application has been made under section 144,
order the thing seized to be returned to the
applicant if security is given to Her Majesty in
right of Canada in a form and amount that is
satisfactory to the Minister.
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| Disposition of
thing
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146. (1) Notwithstanding that an
application has been made under section 144
in respect of a thing, the Minister may, by
motion, request the authorization of the court
to dispose of the thing, and with that
authorization may order that the thing be
disposed of.
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| Notice of
application
for
authorization
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(2) Where the Minister makes a request
under subsection (1), the Minister shall give
notice of the request and of the hearing of it at
least thirty days before the day fixed for the
hearing to every person who, to the knowledge
of the Minister, has an interest in the thing and,
where the thing is a fishing vessel, to the
owner of the vessel and to every person
referred to in section 139.
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| Authorization
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(3) The court may grant the authorization
referred to in subsection (1) where, in its
opinion, the thing is deteriorating.
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| Proceeds of
disposition
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(4) The Minister shall hold the proceeds of
disposition of the thing until any claim under
section 144 in respect of the thing has been
finally disposed of.
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| Order by
court
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147. On receipt of an application under
section 144, where it is made to appear to the
satisfaction of the court
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(a) that the applicant is innocent of any
complicity in the violation that resulted in
the forfeiture and of any collusion in
relation to that violation with the holder
who was liable for the violation, and
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(b) that the applicant exercised all
reasonable care
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(i) in respect of the person permitted to
obtain possession of the thing in respect
of which the application is made, to
satisfy the person that the thing was not
likely to be used contrary to this Act or
the regulations, or
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(ii) in the case of a secured creditor, in
respect of the debtor,
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the court shall make an order declaring that the
applicant's interest is not affected by the
forfeiture and declaring the nature and value
of that interest.
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| Ranking of
applicants
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148. Where there is more than one person
who claims an interest in a thing, a court
hearing an application under section 144 with
respect to the thing may, on application by the
Attorney General of Canada or any of those
persons, determine the rank of the interests of
the persons.
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| Appeal
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149. The applicant or the Minister may
appeal from an order made under section 147
to the court of appeal of the province in which
the order was made, and the appeal shall be
asserted, heard and decided according to the
ordinary procedure governing appeals to that
court from orders or judgments of a judge.
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| Application to
Minister
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150. (1) Subject to this section, the Minister
shall, on application made by any person who
has obtained an order pursuant to section 147
which is a final order,
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(a) except in the case of any thing disposed
of under subsection 134, direct that the
thing to which the interest of the applicant
relates or the proceeds of disposition of the
thing be returned to the applicant; or
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(b) direct that an amount equal to the value
of the interest of the applicant, as declared
in the order, be paid to the applicant.
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| Exception
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(2) A thing or proceeds of disposition
directed to be returned under paragraph (1)(a)
or an amount directed to be paid under
paragraph (1)(b) may be retained until any
costs incurred in the seizure, retention or
disposition of the thing are paid.
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| Liens against
fishing vessels
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(3) If the thing directed to be returned under
paragraph (1)(a) is a fishing vessel, a lien
attaches to the fishing vessel for the amount of
any costs referred to in subsection (2), which
lien has priority over all other rights, interests,
claims and demands whatever, excepting only
claims for wages of seamen under the Canada
Shipping Act.
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| Discharge of
encumbrances
|
151. A court may, on ex parte application of
the Minister, make an order directing the
registrar to register a discharge of any interest
recorded against a thing the title to which is
required to be registered and that is disposed
of under this Act, where the court is satisfied
that any person in whose favour the interest
was registered was given notice in accordance
with subsection 146(2).
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| Her Majesty
not liable for
shortfall
|
152. Her Majesty in right of Canada is not
liable for any difference between the proceeds
of disposition of any thing disposed of under
this Act and the fair market value of the thing.
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Other Enforcement Measures
|
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| Arrest
|
153. (1) Any fishery officer, fishery
guardian or peace officer may arrest without
warrant a person or fishing vessel who that
officer or guardian believes, on reasonable
grounds, has committed an offence against
this Act or any of the regulations, or who the
officer or guardian finds committing or
preparing to commit an offence against this
Act or any of the regulations.
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| Use of force
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(2) A fishery officer or fishery guardian
may, in the manner and to the extent
prescribed, use force that is intended or is
likely to disable a foreign fishing vessel, if the
fishery officer or fishery guardian
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(a) is proceeding to lawfully arrest a foreign
fishing vessel or to lawfully arrest the
master or other person in command of such
a vessel; and
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(b) believes on reasonable grounds that the
force is necessary for the purpose of that
arrest.
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