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Bill C-62

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Inspectors and Analysts

Designation of inspectors and analysts

51. (1) The Minister may designate any individual or class of individuals as inspectors or analysts for the purposes of this Part.

Certificate to be produced

(2) The Minister shall furnish every inspec tor with a certificate of designation, and on entering any place referred to in this Part an inspector shall, on request, produce the certifi cate to the person in charge of that place.

Powers of inspector

(3) For any purpose related to the adminis tration of this Part, an inspector may, at any reasonable time, enter and inspect any place, including any premises, vessel or vehicle, other than a dwelling-house, in which the inspector believes on reasonable grounds there has been, is being or is likely to be carried on any prescribed project or other work, activity or undertaking in respect of which this Part or the regulations apply, and the inspector may

    (a) examine any substance or product found therein or any other thing relevant to the administration of this Part or the regulations made under this Part that is found in the place;

    (b) take samples of any thing that is relevant to the administration of this Part or the regulations made under this Part;

    (c) conduct any tests or analyses or take any measurements;

    (d) open and examine any thing found that the inspector believes on reasonable grounds contains any substance or other thing in respect of which this Part or the regulations made under this Part apply; and

    (e) examine any books, records, electronic data or other documents that the inspector believes on reasonable grounds contain any information that is relevant to the adminis tration of this Part or the regulations made under this Part and make copies thereof or take extracts therefrom.

Operation of computer systems and copying equipment

(4) In conducting an inspection of a place under subsection (3), an inspector may

    (a) 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;

    (b) reproduce any record or cause it to be reproduced from the data in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and

    (c) use or cause to be used any copying equipment at the place to make copies of any books, records, electronic data or other documents.

Disposition of samples

(5) An inspector who takes a sample under paragraph (3)(b) may dispose of it in any manner that the inspector considers appropri ate.

Duty to assist inspectors

52. The owner or person who is in posses sion or control of a place that is inspected under section 51, and every person found in the place, shall

    (a) give the inspector all reasonable assis tance to enable the inspector to carry out the inspection and exercise any power con ferred by that section; and

    (b) provide the inspector with any informa tion relevant to the administration of this Part or the regulations made under this Part that the inspector may reasonably require.

Warrant

53. (1) An inspector with a warrant issued under subsection (2) may, at any reasonable time, enter any place, including any premises, vessel or vehicle, other than a dwelling-house, where the inspector believes on reasonable grounds that an offence referred to in sections 61 to 63 is being or has been committed and search that place for evidence of the offence.

Authority to issue warrant

(2) Where on ex parte application a justice is satisfied by information on oath that there are reasonable grounds to believe that there is in any place referred to in subsection (1)

    (a) any thing on or in respect of which an offence referred to in sections 61 to 63 is being or has been committed, or

    (b) any thing that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence referred to in sections 61 to 63,

the justice may issue a warrant authorizing the inspector named in it to enter and search the place for any such thing, subject to any condi tions that may be specified in the warrant.

Use of force

(3) In executing a warrant issued under subsection (2), the inspector named in it shall not use force unless the inspector is accompa nied by a peace officer and the use of force has been specifically authorized in the warrant.

Where warrant not necessary

(4) An inspector may exercise the powers described in subsections (1) to (3) without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circum stances, it would not be practical to obtain a warrant.

Powers during search

54. (1) In conducting a search of a place under section 53, an inspector may exercise the powers described in subsections 51(3) to (5).

Entry

(2) An inspector or any person acting under the authority of the inspector may, while conducting an inspection or search under this Part, enter on and pass through or over private property without being liable for trespass or without the owner of the property having the right to object to that use of the property.

Certificate of analyst as proof

55. (1) Subject to subsections (2) and (3), a certificate purporting to be signed by an analyst stating that the analyst has analysed or tested a substance or product and stating the result of the analysis or test is admissible in evidence in any prosecution for an offence referred to in sections 61 to 63 without proof of the signature or official character of the person appearing to have signed the certificate and, in the absence of any evidence to the contrary, is proof of the statements contained in the certificate.

Attendance of analyst

(2) The party against whom there is pro duced any certificate pursuant to subsection (1) may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

Notice

(3) No certificate shall be admitted in evidence pursuant to subsection (1) unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.

Reports and Corrective Measures

Duty to notify

56. (1) Where a deposit of a deleterious substance in waters frequented by fish, that is not authorized under this Part, or a harmful alteration, disruption or destruction of fish habitat, that is not authorized under this Part, occurs, or a serious and imminent danger of such an occurrence exists, any person who at any material time

    (a) owns the deleterious substance or has the charge, management or control of it,

    (b) owns or has the charge, management or control of the prescribed project or other work, activity or undertaking that resulted in the occurrence or the danger of the occurrence, or

    (c) causes or contributes to the occurrence or the danger of the occurrence

shall immediately notify an inspector, a fish ery officer or any other prescribed authority of the occurrence or the danger of the occur rence.

Report

(2) As soon as possible in the circum stances, the person described in any of para graphs (1)(a) to (c) shall, subject to the regulations, provide to the inspector, fishery officer or other prescribed authority a full report of the details of the occurrence or the danger of the occurrence.

Duty to take corrective measures

(3) Any person described in any of para graphs (1)(a) to (c) shall, as soon as possible in the circumstances, take all reasonable measures consistent with safety and with the conservation of fish and fish habitat to prevent any occurrence referred to in subsection (1) or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result from such an occurrence.

Corrective measures

(4) Where an inspector, fishery officer or other authority, whether or not notification has been given under subsection (1) or a report has been made under subsection (2), is satisfied on reasonable grounds that immediate action is necessary in order to take any reasonable measures referred to in subsection (3), the inspector, fishery officer or other authority may, subject to subsection (5) and the regula tions, take any such measures or direct that they be taken by any person described in any of paragraphs (1)(a) to (c) at that person's cost.

Inconsistent orders

(5) Any requirement or direction of an inspector, fishery officer or other authority under this section that is inconsistent with any requirement or order of a pollution prevention officer under the Canada Shipping Act is void to the extent of the inconsistency.

Authority to enter any place

(6) For the purposes of subsections (1) to (4), any inspector or fishery officer may enter and have access to any place, including any premises, vehicle or vessel, and may take all reasonable action in order to comply with those subsections, but nothing in this subsec tion relieves any inspector or fishery officer from liability at law for any illegal or negli gent acts or omissions they may commit or for loss or damage caused to others by such entry, access or action.

Exception

(7) Subsections (1) to (4) do not apply in respect of any deposit of a deleterious sub stance that, within the meaning of Part XV of the Canada Shipping Act, constitutes a dis charge of a pollutant caused by or otherwise attributable to a ship.

Regulations

Regulations

57. The Governor in Council may make regulations for the conservation and protec tion of fish habitat and the prevention of the obstruction or pollution of any waters fre quented by fish and, without restricting the generality of the foregoing, may make regula tions

    (a) prescribing, for the purposes of the definition ``prescribed project'' in section 2, classes of works, activities and undertak ings;

    (b) prescribing, for the purposes of the definition ``deleterious substance'' in sec tion 42,

      (i) substances and classes of substances,

      (ii) quantities or concentrations of sub stances and classes of substances in water, and

      (iii) treatments, processes and changes in water;

    (c) prescribing the manner and circum stances in which any information shall be provided to the Minister without request under subsection 48(1);

    (d) prescribing the manner and circum stances in which the Minister may make orders under subsection 48(2) and the terms of the orders;

    (e) prescribing the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection 50(1);

    (f) prescribing the waters or places or classes thereof where any deleterious sub stances or classes thereof referred to in paragraph (e) are authorized to be depos ited;

    (g) prescribing the works, activities or undertakings or classes thereof in the course or conduct of which any deleterious sub stances or classes thereof referred to in paragraph (e) are authorized to be depos ited;

    (h) prescribing the quantities or concentra tions of any deleterious substances or classes thereof referred to in paragraph (e) that are authorized to be deposited;

    (i) prescribing the conditions or circum stances under which and the requirements subject to which any deleterious substances or classes thereof referred to in paragraph (e) or any quantities or concentrations of those deleterious substances or classes thereof are authorized to be deposited in any waters or places or classes thereof referred to in paragraph (f) or in the course or conduct of any works, activities or undertakings or classes thereof referred to in paragraph (g);

    (j) prescribing the persons who may autho rize the deposit of any deleterious sub stances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and require ments subject to which those persons may grant the authorization;

    (k) respecting the alteration, disruption or destruction of fish habitat, for the purposes of subsection 49(1);

    (l) prescribing the authorities to whom a notification is to be given under subsection 56(1);

    (m) prescribing the manner in which the report referred to in subsection 56(2) is to be made, the information to be contained in it and the circumstances in which no report is required to be made;

    (n) prescribing the manner in which inspec tors and fishery officers or other authorities may take any measures or give any direc tions under subsection 56(4) and the condi tions to which such measures or directions are subject;

    (o) prescribing the manner and circum stances in which any measures taken or directions given under subsection 56(4) may be reviewed, rescinded or varied;

    (p) prescribing the fees that may be charged by Her Majesty in right of Canada for any permits, authorizations or approvals given under this Part; and

    (q) prescribing any other matters necessary for or incidental to carrying out the pur poses and provisions of this Part.

Delegation

58. (1) The Governor in Council may make regulations delegating, to any minister of the government of a province or any person or class of persons employed by the government of a province, any of the powers conferred on the Minister by sections 43 to 47 and para graphs 48(1)(a) and (2)(a) and (b) and 49(1)(b) in relation to any work, activity or undertaking other than a prescribed project, in respect of any waters within that province and setting out the conditions and circumstances of the delegation.

References to Her Majesty

(2) The references to ``Her Majesty in right of Canada'' in subsections 43(3) and 47(4) are deemed to be references to Her Majesty in right of the province in any case where a regulation has been made under subsection (1) delegating to a minister of the government of the province or any person or class of persons employed by that government the powers conferred on the Minister by those provisions.

Inconsistency

(3) Any approval, authorization, require ment, direction or order made by a minister of the government of a province or a person or class of persons referred to in subsection (1) that is inconsistent with any term or condition of a permit issued under subsection 49(3) or with any approval, authorization, require ment, direction or order made by the Minister is void to the extent of the inconsistency.

Five-year review

59. (1) Within five years after the coming into force of subsections 49(2) and (3) and 58(1), respectively, a comprehensive review of the operation of those subsections shall be undertaken by such committee of the House of Commons, of the Senate or of both Houses of Parliament as may be designated or estab lished by Parliament for that purpose.

Report to Parliament

(2) The committee referred to in subsection (1) shall, within one year after each review is undertaken pursuant to that subsection or within such further time as Parliament may authorize, submit a report on the review to Parliament including a statement of any changes the committee recommends.

Civil liability

60. (1) Where a deposit of a deleterious substance in waters frequented by fish, that is not authorized under this Part, or a harmful alteration, disruption or destruction of fish habitat, that is not authorized under this Part, occurs, or a serious and imminent danger of such an occurrence exists, any persons who, at any material time,

    (a) subject to subsection (4),

      (i) own the deleterious substance or have the charge, management or control of it, or

      (ii) own or have the charge, management or control of the prescribed project or other work, activity or undertaking that resulted in the occurrence or the danger of the occurrence, or

    (b) are, to the extent of their respective degrees of fault or negligence, persons other than persons described in subpara graph (a)(i) or (ii), who cause or contribute to the occurrence or the danger of the occurrence,

are jointly and severally liable for all costs in curred by Her Majesty in right of Canada or a province, to the extent that those costs can be established to have been reasonably incurred in the circumstances, of and incidental to the taking of any measures to prevent any such de posit or harmful alteration, disruption or de struction, or to counteract, mitigate or remedy any adverse effects that result or may reason ably be expected to result from such a deposit or harmful alteration, disruption or destruc tion.

Recovery of costs

(2) All of the costs referred to in subsection (1) are recoverable by Her Majesty in right of Canada or a province with costs in proceed ings brought or taken therefor in the name of Her Majesty in any such right in any court of competent jurisdiction.

Joint and several liability

(3) Any persons described in subparagraphs (1)(a)(i) and (ii) and paragraph (1)(b) who, without being authorized under this Part, deposit a deleterious substance in waters frequented by fish, or harmfully alter, disrupt or destroy fish habitat, are, subject to subsec tion (4), in the case of persons described in those subparagraphs, and to the extent deter mined according to their respective degrees of fault or negligence, in the case of persons described in that paragraph, jointly and sever ally liable for all loss of income incurred by any licensed commercial fisher, to the extent that the loss can be established to have been incurred as a result of the deposit or the harmful alteration, disruption or destruction, or of a prohibition to fishing resulting there from, and all such loss is recoverable with costs in proceedings brought or taken therefor in any court of competent jurisdiction.

Absolute liability

(4) The liability of any person described in subparagraph (1)(a)(i) or (ii) is absolute and does not depend on proof of fault or negli gence, but no such person is liable for any costs pursuant to subsection (1) or loss of income pursuant to subsection (3) if the person establishes that the occurrence giving rise to the liability was wholly caused by

    (a) an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

    (b) an act or omission with intent to cause damage by any other person, other than a person for whose wrongful act or omission the person is by law responsible.

Recourse against another person

(5) Nothing in this section limits or restricts any right of recourse that any person who is liable pursuant to this section may have against any other person.

Limitation period

(6) No proceedings may be commenced under subsections (1) to (3) at any time later than five years after the occurrence to which the proceedings relate could reasonably be expected to have become known to Her Majesty in right of Canada or a province or to any licensed commercial fisher, as the case may be.

Discharge of pollutant

(7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious sub stance that, within the meaning of Part XV of the Canada Shipping Act, constitutes a dis charge of a pollutant caused by or otherwise attributable to a ship.

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