Antarctic Environmental Protection Act (S.C. 2003, c. 20)

Marginal note:Exigent circumstances

• 37.04 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 37.03.

• Meaning of exigent circumstances

  (2) For greater certainty, exigent circumstances includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 37.03(4) would result in danger to human life or the environment.

Marginal note:Notice of intent

• 37.05 (1) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before issuing an order,

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (2) The notice of intent to issue the order must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the order is to be issued; and

  • (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Marginal note:Compliance with order

• 37.06 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer in an order given orally under subsection 37.04(1), comply with the order.

• Marginal note:No bar to proceedings

  (2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.

Marginal note:Intervention by enforcement officer

• 37.07 (1) If a person to whom an order is directed fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.

• Marginal note:Access to property

  (2) An enforcement officer or other person authorized or required by an enforcement officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances.

• Marginal note:Personal liability

  (3) Any person, other than a person described in paragraph 37.03(2)(a) or (b), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.

Marginal note:Recovery of reasonable costs and expenses by Her Majesty

• 37.08 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 37.07(1) from any person referred to in paragraph 37.03(2)(a) to the extent of the person’s negligence in causing or contributing to the alleged contravention.

• Marginal note:Costs must have been reasonably incurred

  (2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.

• Marginal note:Liability

  (3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.

• Marginal note:Procedure

  (4) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

• Marginal note:Recourse or indemnity

  (5) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

• Marginal note:Limitation period

  (6) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later.

• Marginal note:Minister’s certificate

  (7) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

Marginal note:Request for review

• 37.09 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order.

• Marginal note:Extension of period for request

  (2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so.

Marginal note:Variation or cancellation of order

• 37.1 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice,

  • (a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order;

  • (b) cancel the order;

  • (c) correct a clerical error in the order; or

  • (d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed since the day on which the order was received by the person who is subject to it.

• Marginal note:Notice of intent

  (2) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d),

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (3) The notice of intent to exercise a power under paragraph (1)(a) must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the power is to be exercised; and

  • (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Marginal note:Regulations

37.11 The Minister may make regulations

• (a) prescribing the form of reporting to enforcement officers under subparagraph 37.03(3)(f)(ii) and specifying the information required to be contained in or to accompany the report; and

• (b) of either particular or general application, respecting representations made to enforcement officers under paragraph 37.05(1)(b) or 37.1(2)(b).

Marginal note:Review

37.12 Sections 257 to 271 of the Canadian Environmental Protection Act, 1999 apply, with any modifications that the circumstances require, to a review requested of any order.

Assistance to Enforcement Officers and Analysts

Marginal note:Right of passage

38 An enforcement officer, analyst or any other person may, while carrying out their functions under this Act, enter on and pass through or over private property without being liable for exercising that power or without the owner of the property having the right to object to that use of the property.

Marginal note:Assistance

39 The owner or the person in charge of a place entered by an enforcement officer or analyst under section 32, and every person found in the place, shall

• (a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and

• (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the enforcement officer or analyst may reasonably require.

Forfeiture in Canada

Marginal note:Forfeiture on consent

• 40 (1) If an enforcement officer has seized a thing under section 32 or subsection 35(1) and the owner or person who was in lawful possession of it at the time of the seizure consents in writing at the request of the enforcement officer to its forfeiture, it is forfeited to Her Majesty in right of Canada.

• Marginal note:Disposal or destruction

  (2) The Minister may dispose of or destroy a thing forfeited under subsection (1) and, if the Minister so directs, the costs of the disposal or destruction shall be paid by the owner or the person who was in lawful possession of the thing at the time it was seized.

Marginal note:Forfeiture by order of court

• 41 (1) Subject to sections 42 and 43, if a person is convicted of an offence under this Act and anything seized under section 32 or subsection 35(1) is then being detained,

  • (a) the thing is, on the conviction and in addition to any punishment imposed for the offence, forfeited to Her Majesty in right of Canada if the court so directs, in which case

    • (i) the Minister may dispose of or destroy the thing, and

    • (ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or

  • (b) the thing shall, on the expiry of the period for taking an appeal from the conviction or on the final conclusion of the proceedings, be restored to the person from whom it was seized or to any other person entitled to its possession on any conditions that may be imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of a further offence under this Act.

• Marginal note:Things deemed not to have been seized

  (2) For the purpose of subsection (1), anything released from detention under paragraph 35(4)(a) or (b) is deemed not to have been seized under section 32 or subsection 35(1).

Marginal note:Court may order forfeiture

42 If the authorized representative of a Canadian vessel or the registered owner of a Canadian aircraft has been convicted of an offence under this Act, the convicting court may, if the vessel or aircraft was seized under section 32 or subsection 35(1), in addition to any other penalty imposed, order that the vessel or aircraft, or any security given under subsection 34(1) be forfeited, and on the making of the order, the vessel or aircraft or security is forfeited to Her Majesty in right of Canada.

Marginal note:Disposal of forfeited vessel, aircraft, etc.

• 43 (1) If proceedings referred to in subsection 34(2) are instituted within the period referred to in that subsection and, at the final conclusion of those proceedings, any vessel or aircraft, or any security given under subsection 34(1), is ordered to be forfeited, it may be disposed of as the Governor in Council directs.

• Marginal note:Return of seized vessel, etc., where no forfeiture ordered

  (2) If a thing has been seized under section 32 and proceedings referred to in subsection (1) are instituted, but the thing is not, at the final conclusion of the proceedings, ordered to be forfeited, it must be returned to the person from whom it was seized, the proceeds of any sale of the cargo under subsection 33(3) must be paid to that person and any security given to the Minister under subsection 34(1) must be returned to that person.

• Marginal note:Exception

  (3) If, at the conclusion of proceedings referred to in subsection (1), the person from whom the thing was seized is convicted of an offence arising out of a contravention of this Act or the regulations, the thing and any cargo or the proceeds or security may be retained until the fine is paid, or the thing and any cargo may be sold under execution in satisfaction of the fine, or the proceeds realized from the sale of the cargo or the security or any part of the cargo or security may be applied in payment of the fine.

Marginal note:Application by person claiming interest

• 44 (1) If a thing has been ordered to be forfeited under this Act, any person, other than a person who was a party to the proceedings that resulted in the order, who claims a right or an interest in the thing as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law may, within 30 days after the day on which the thing is ordered to be forfeited, apply by notice in writing to the Federal Court for an order under subsection (5).

• Marginal note:Date of hearing

  (2) The Federal Court must fix a day for the hearing of the application.

• Marginal note:Notice

  (3) An applicant for an order under subsection (5) must, at least 30 days before the day fixed under subsection (2), serve a notice of the application and of the hearing on the Minister and on all other persons claiming a right or an interest in the thing that is the subject-matter of the application as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law of whom the applicant has knowledge.

• Marginal note:Notice of intervention

  (4) Each person, other than the Minister, who is served with a notice under subsection (3) and who intends to appear at the hearing of the application to which the notice relates must, at least 10 days before the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy of the notice on the Minister and on the applicant.

• Marginal note:Order declaring nature and extent of interests

  (5) If, on the hearing of an application under this section, the Federal Court is satisfied that the applicant, or the intervenors, if any, or any of them,

  • (a) is innocent of any complicity in any conduct that caused the thing to be subject to forfeiture and of any collusion in relation to any such conduct, and

  • (b) exercised all reasonable care in respect of the persons permitted to obtain possession and use of the thing so as to be satisfied that it was not likely to be used contrary to the provisions of this Act or, in the case of a holder of a security established on property, other than the holder of a maritime lien or statutory right in rem, that the applicant or intervenor exercised such care with respect to the person who gave the property as security,

  those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their rights or interests are not affected by the forfeiture and declaring the nature and extent of each of their rights or interests and the ranking among them.

• Marginal note:Additional order

  (6) If an order is made under subsection (5), the Court may, in addition, order that the thing to which the rights or interests relate be delivered to one or more of the persons found to have a right or an interest in it or that an amount equal to the value of each of the interests so declared be paid to the persons found to have those interests.