Bill C-62

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First Reading

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	Licence Appeals
Appeals to Tribunal	90. (1) Where the Minister does not issue a licence to which this Part applies on applica tion or within a reasonable period thereafter, the applicant may appeal to a Tribunal.
Disposition of appeal	(2) A Tribunal, in accordance with any licensing policies of the Minister, may dispose of the appeal
	(a) by allowing the appeal and directing the Minister to issue the licence; or
	(b) by dismissing the appeal.
	Violations
	Violations and their Classification
Classification of violations	91. Violations are either major violations or minor violations.
Major violations	92. A major violation is committed where
	(a) a holder contravenes a provision of this Act or the regulations that is prescribed by the regulations made under subparagraph 121(1)(b)(i);
	(b) a holder contravenes
	(i) a condition of a licence, or
	(ii) a provision of a fisheries management order
	that is of a class prescribed by the regula tions made under subparagraph 121(1)(b)(ii);
	(c) a holder contravenes an order made under subsection 99(2); or
	(d) a minor violation is committed, if a case presentation officer elects under subsection 103(1) to treat the violation as a major violation.
Minor violations	93. A minor violation is committed where
	(a) a holder contravenes a provision of this Act or the regulations that is prescribed by the regulations made under subparagraph 121(1)(c)(i); or
	(b) a holder contravenes
	(i) a condition of a licence, or
	(ii) a provision of a fisheries management order
	that is of a class prescribed by the regula tions made under subparagraph 121(1)(c)(ii).
Violation not an offence	94. (1) A violation is not an offence, and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Disobedience of order not an offence	(2) Disobedience of an order made by a Tribunal under subsection 99(1) or (2) or section 100 is not an offence, and, according ly, section 127 of the Criminal Code does not apply in respect of the disobedience of such an order.
	Liability for Violations
Direct and vicarious liability	95. (1) A holder is liable not only for a violation that the holder actually commits but also for a violation that is committed in respect of any matter relating to any operations under the holder's licence, whether or not the person or vessel who actually committed the viola tion is identified or proceeded against in accordance with this Act.
Fishing vessels	(2) Where a fishing vessel is used in the commission of a violation, the following, if holders, are liable for the violation:
	(a) the fishing vessel;
	(b) the master or other person on board the fishing vessel who is in command or charge of the fishing vessel; and
	(c) any person who is lawfully entitled to possession of the fishing vessel, whether as owner or charterer.
Burden of proof	96. (1) A case presentation officer has the legal burden of establishing, on a balance of probabilities, that a holder is liable for a violation.
Limitation	(2) A proceeding in respect of a violation may be begun not later than two years after the later of
	(a) the day on which the violation was committed, and
	(b) the day on which evidence of the violation first came to the attention of a fishery officer or fishery guardian.
Excuses	97. (1) A holder is not liable for a violation if the holder establishes that the holder
	(a) exercised all due diligence to prevent the violation from being committed; or
	(b) reasonably and honestly believed in the existence of facts that, if true, would render the holder's conduct innocent.
Excuse unique to holder	(2) The fact that a holder is not liable for a violation because the holder has an excuse under subsection (1) does not mean that no other holder is liable for the violation.
Continuing violations	98. A violation that is committed or contin ued on more than one day constitutes a separate violation for each day on which it is committed or continued.
	Sanctions
Revocation or suspension of licence	99. (1) Where a holder is liable for a major violation, a Tribunal may, without prejudice to section 138, in accordance with this Act, make an order revoking or suspending the holder's licence or prohibiting the holder from applying for any licence.
Additional sanctions	(2) A Tribunal that makes an order under subsection (1) in relation to a holder may also make an order
	(a) directing the holder to pay the reason able costs incurred in the seizure, detention, maintenance or disposition of any fish or other thing seized under this Act;
	(b) directing the holder to
	(i) take any action that the Tribunal considers appropriate to remedy or avoid any harm to any fish or fishery that resulted or may result from the commis sion of the violation,
	(ii) publish, in any manner that the Tribunal considers appropriate, the facts relating to the commission of the viola tion,
	(iii) post a bond in an amount that the Tribunal considers appropriate for the purpose of ensuring compliance with any direction mentioned in this section,
	(iv) submit to the Department, within three years after the day on which the order is made, any information requested by the Department respecting the activi ties of the holder that relates to a matter specified in the order, or
	(v) comply with any other conditions that the Tribunal considers appropriate for ensuring the holder's compliance with this Act, the regulations and the condi tions of the holder's licence;
	(c) assessing a monetary penalty not ex ceeding $15,000 against the holder;
	(d) where the Tribunal is satisfied that, as a result of the commission of the major violation, the holder acquired monetary benefits or monetary benefits accrued to the holder, notwithstanding the maximum amount of a monetary penalty that may be assessed under paragraph (c), assessing an additional monetary penalty against the holder, in an amount equal to the Tribunal's finding of the amount of those monetary benefits; or
	(e) varying or rescinding, in whole or in part, any condition of a licence related to the number or quantity of fish that may be caught.
Publication	(3) Where a holder does not comply with an order of a Tribunal made under subparagraph (2)(b)(ii) directing the holder to publish the facts relating to the commission of a violation, the Tribunal may publish those facts and recover the costs of publication from the holder.
Sanctions for minor violations	100. Where a holder is liable for a minor violation, a Tribunal may, without prejudice to section 138, make an order confirming the assessment against the holder of the monetary penalty.
	Case Presentation Officers
Case presentation officers	101. The Minister may designate any individuals or classes of individuals employed in the Department as case presentation offi cers for the purposes of this Act.
	Major Violations
Notice of major violation	102. A case presentation officer who has reasonable grounds to believe that a holder is liable for a major violation may complete a notice of major violation and cause it to be served on the holder and sent to a Tribunal.
Election	103. (1) A case presentation officer who has reasonable grounds to believe that a holder is liable for a minor violation may elect to treat the violation as a major violation if a notice of the assessment of a monetary penalty for the violation has not been completed and served under section 106 and
	(a) during the five years before the violation was committed, the holder has committed at least two other violations for which
	(i) an order has been made under section 99 or 100, or
	(ii) the holder has made a payment in accordance with paragraph 107(1)(a); or
	(b) in the prescribed circumstances, the case presentation officer is of the opinion, having regard to the effect or potential effect of the commission of the violation on the fisheries resource, that the violation should be treated as a major violation.
Notice of election	(2) A case presentation officer who makes an election under subsection (1) shall com plete a notice of election and have the notice served on the holder and sent to the Tribunal.
Options of holders	104. A holder may, within thirty days after being served with a notice of major violation under section 102 or a notice of election under section 103,
	(a) request a hearing by signing the request for hearing on the notice and sending the request to the Tribunal; or
	(b) request an opportunity to make written representations by signing the request for an opportunity to make written representations on the notice and sending the request to the Tribunal.
Settlement	105. A case presentation officer and a holder who has been served with a notice of major violation under section 102 or a notice of election under section 103 may, at any time before the Tribunal makes an order in respect of the major violation, agree on which order or orders should be made under subsection 99(1) or (2).
	Minor Violations
Assessment of monetary penalty	106. A fishery officer or fishery guardian who has reasonable grounds to believe that a holder is liable for a minor violation may complete a notice of the assessment of a monetary penalty and have it served on the holder.
Options of holders	107. (1) A holder may, within fifteen days after being served with a notice of the assessment of a monetary penalty under section 106,
	(a) pay an amount equal to one half of the monetary penalty by sending the notice, along with that amount, to the place speci fied in the notice; or
	(b) contest the assessment of the monetary penalty by signing the request for an opportunity to make written representations on the notice and sending the request to the Tribunal.
Forfeiture where assessment of monetary penalty not contested	(2) Where a holder from whom any fish is seized in connection with a minor violation makes a payment in accordance with para graph (1)(a) in respect of the violation, the fish, or any proceeds realized from its disposi tion, is thereupon forfeited to Her Majesty in right of Canada.
Disposition of forfeited things	(3) Any fish that is forfeited under subsec tion (2) may be disposed of immediately on its forfeiture, in any manner that the Department directs.
No double liability	(4) A holder is not liable for a violation if the holder establishes that the holder has made a payment in accordance with paragraph (1)(a) in respect of the violation.
	Hearing
Hearing to be held	108. A Tribunal, after receiving a request for a hearing in accordance with paragraph 104(a), shall hold a hearing and make one of the orders referred to in section 116.
	Opportunity to Make Written Representations
Tribunal to inform Department	109. A Tribunal shall inform the Depart ment that it has received a request for an opportunity to make written representations in accordance with paragraph 104(b) or 107(1)(b), within fifteen days after that re ceipt.
Department to provide its case	110. (1) Within thirty days after the Depart ment is informed of a Tribunal's receipt of a request for an opportunity to make written representations, a case presentation officer shall serve on the holder and send to the Tribunal a statement
	(a) setting out any written representations of the case presentation officer with respect to the matters referred to in section 113; and
	(b) containing any documentary evidence that the case presentation officer wishes to present in support of those representations, which evidence need not be on oath.
Notice of right to make representa- tions	(2) The statement that is served on the holder must be accompanied by a notice setting out the right of the holder
	(a) to make written representations with respect to the matters referred to in section 113 and any extension of time for paying any monetary penalty that has been as sessed or that may be ordered; and
	(b) to present documentary evidence in support of those representations.
Right to make written representa- tions	111. The holder may, within thirty days after being served with the statement referred to in section 110, send to the Tribunal a statement
	(a) setting out any written representations of the holder with respect to the matters referred to in section 113 and any extension of time for paying any monetary penalty that has been assessed or that may be ordered; and
	(b) containing any documentary evidence that the holder wishes to present in support of those representations, which evidence need not be on oath.
Department to be notified of holder's representa- tions	112. The Tribunal shall send a copy of any statement it receives under section 111 to the Department, within fifteen days after that receipt.
Written representa- tions	113. Written representations in respect of a violation may be made with respect to the following matters:
	(a) whether the holder is liable for the violation; and
	(b) in the case of a major violation,

Bill C-62

Licence Appeals

Violations