Arctic Waters Pollution Prevention Act (R.S.C., 1985, c. A-12)

Short Title

Marginal note:Short title

1 This Act may be cited as the Arctic Waters Pollution Prevention Act.

Interpretation

Marginal note:Definitions

2 In this Act,

analyst

analyst means a person designated as an analyst under the Canada Water Act, the Mackenzie Valley Resource Management Act or the Nunavut Waters and Nunavut Surface Rights Tribunal Act; (analyste)

arctic waters

arctic waters means the internal waters of Canada and the waters of the territorial sea of Canada and the exclusive economic zone of Canada, within the area enclosed by the 60th parallel of north latitude, the 141st meridian of west longitude and the outer limit of the exclusive economic zone; however, where the international boundary between Canada and Greenland is less than 200 nautical miles from the baselines of the territorial sea of Canada, the international boundary shall be substituted for that outer limit; (eaux arctiques)

ice-breaker

ice-breaker means a ship specially designed and constructed for the purpose of assisting the passage of other ships through ice; (brise-glace)

owner

owner, in relation to a ship, includes any person having for the time being, either by law or by contract, the same rights as the owner of the ship with respect to the possession and use thereof; (propriétaire)

pilot

pilot means a licensed pilot as defined in section 1.1 of the Pilotage Act; (pilote)

pollution prevention officer

pollution prevention officer means a person designated as a pollution prevention officer pursuant to section 14; (fonctionnaire compétent)

ship

ship includes any description of vessel or boat used or designed for use in navigation without regard to method or lack of propulsion; (navire)

shipping safety control zone

shipping safety control zone means an area of the arctic waters prescribed as a shipping safety control zone by an order made under section 11; (zone de contrôle de la sécurité de la navigation)

waste

waste means

• (a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water to an extent that is detrimental to their use by man or by any animal, fish or plant that is useful to man, and

• (b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water to the extent described in paragraph (a),

and without limiting the generality of the foregoing, includes anything that, for the purposes of the Canada Water Act, is deemed to be waste. (déchet)

Application of Act

Marginal note:Inconsistency with Marine Liability Act

2.1 In the event of an inconsistency between the provisions of this Act, or any regulation made under this Act, and the provisions of the Marine Liability Act, the provisions of that Act prevail to the extent of the inconsistency.

Marginal note:Application to arctic waters

• 3 (1) Except where otherwise provided, this Act applies to the arctic waters.

• Marginal note:Adjacent waters included in arctic waters

  (2) In so far as this Act applies to or in respect of any person described in paragraph 6(1)(a), the expression “arctic waters” includes all the waters described in the definition of that expression in section 2 and all waters adjacent thereto lying north of the sixtieth parallel of north latitude, the natural resources of whose subjacent submarine areas Her Majesty in right of Canada has the right to dispose of or exploit, whether the waters so described or those adjacent waters are in a frozen or liquid state, but does not include inland waters.

Incorporation by Reference

Marginal note:Incorporation as amended from time to time

• 3.1 (1) Regulations made under this Act incorporating standards by reference may incorporate them as amended from time to time.

• Marginal note:For greater certainty only

  (2) Subsection (1) is for greater certainty and does not limit any authority to make regulations incorporating material by reference that exists apart from it.

Deposit of Waste

Marginal note:Prohibition

• 4 (1) Except as authorized by regulations made under this section, no person or ship shall deposit or permit the deposit of waste of any type in the arctic waters or in any place on the mainland or islands of the Canadian arctic under any conditions where the waste or any other waste that results from the deposit of the waste may enter the arctic waters.

• Marginal note:Exception

  (2) Subsection (1) does not apply to the deposit of waste in waters that form part of a water quality management area designated pursuant to the Canada Water Act if the waste so deposited is of a type and quantity and is deposited under conditions authorized by regulations made under paragraph 18(2)(a) of that Act with respect to that water quality management area.

• Marginal note:Regulations

  (3) The Governor in Council may make regulations for the purposes of this section prescribing

  • (a) the type and quantity of waste, if any, that may be deposited by any person or ship in the arctic waters or in any place on the mainland or islands of the Canadian arctic under any conditions where that waste or any other waste that results from the deposit of that waste may enter the arctic waters; and

  • (b) the conditions under which any such waste may be so deposited.

Marginal note:Report of deposit of waste or danger thereof

• 5 (1) Any person who

  • (a) has deposited waste in contravention of subsection 4(1), or

  • (b) carries on any undertaking on the mainland or islands of the Canadian arctic or in the arctic waters that, by reason of any accident or other occurrence, is in danger of causing any deposit of waste described in that subsection otherwise than of a type, in a quantity and under conditions prescribed by regulations made under section 4,

  shall forthwith report the deposit of waste or the accident or other occurrence to a pollution prevention officer at such location and in such manner as may be prescribed by the Governor in Council.

• Marginal note:Report by master of ship

  (2) The master of any ship that has deposited waste in contravention of subsection 4(1), or that is in distress and for that reason is in danger of causing any deposit of waste described in that subsection otherwise than of a type, in a quantity and under conditions prescribed by regulations made under section 4, shall forthwith report the deposit of waste or the condition of distress to a pollution prevention officer at such location and in such manner as may be prescribed by the Governor in Council.

Marginal note:Civil liability resulting from deposit of waste

• 6 (1) The following persons, namely,

  • (a) any person who is engaged in exploring for, developing or exploiting any natural resource on any land adjacent to the arctic waters or in any submarine area subjacent to the arctic waters,

  • (b) any person who carries on any undertaking on the mainland or islands of the Canadian arctic or in the arctic waters, and

  • (c) the owner of any ship that navigates within the arctic waters and the owners of the cargo of any such ship,

  are respectively liable and, in the case of the owner of a ship and the owners of the cargo thereof, are jointly and severally liable, up to the amount determined in the manner prescribed by regulations made under section 9 in respect of the activity or undertaking so engaged in or carried on or in respect of that ship, as the case may be, for costs, expenses and loss or damage described in subsection (2).

• Marginal note:Extent of liability

  (2) Liability under subsection (1) is

  • (a) for all costs and expenses of and incidental to the taking of action described in subsection (3) on the direction of the Governor in Council, and

  • (b) for all actual loss or damage incurred by other persons

  resulting from any deposit of waste described in subsection 4(1) that is caused by or is otherwise attributable to the activity, undertaking or ship, as the case may be, referred to in subsection (1).

• Marginal note:Costs and expenses of Her Majesty

  (3) Where the Governor in Council directs any action to be taken by or on behalf of Her Majesty in right of Canada to repair or remedy any condition that results from a deposit of waste described in subsection (2), or to reduce or mitigate any damage to or destruction of life or property that results or may reasonably be expected to result from such a deposit of waste, the costs and expenses of and incidental to the taking of that action, to the extent that those costs and expenses can be established to have been reasonably incurred in the circumstances, are, subject to this section, recoverable by Her Majesty in right of Canada from the person or persons described in paragraph (1)(a), (b) or (c), with costs, in proceedings brought or taken therefor in the name of Her Majesty.

• Marginal note:Proceedings for recovery of claims

  (4) All claims pursuant to this section against a person or persons described in paragraph (1)(a), (b) or (c) may be sued for and recovered in any court of competent jurisdiction in Canada, and all those claims shall rank

  • (a) first, in favour of persons who have suffered actual loss or damage as provided in paragraph (2)(b), which claims shall among themselves rank pari passu, and

  • (b) second, to meet the costs and expenses described in subsection (3),

  up to the limit of the amount determined in the manner prescribed by regulations made under section 9 in respect of the activity or undertaking engaged in or carried on by the person or persons against whom the claims are made, or in respect of the ship of which any such person is the owner or of all or part of whose cargo any such person is the owner.

• Marginal note:Limitation period

  (5) No proceedings in respect of a claim pursuant to this section shall be commenced after two years from the time when the deposit of waste in respect of which the proceedings are brought or taken occurred or first occurred, as the case may be, or could reasonably be expected to have become known to those affected thereby.

Marginal note:Nature and limitation of liability

• 7 (1) The liability of any person pursuant to section 6 is absolute and does not depend on proof of fault or negligence, except that no person is liable pursuant to that section for any costs, expenses or actual loss or damage incurred by another person whose conduct caused any deposit of waste described in subsection 6(2), or whose conduct contributed to any such deposit of waste, to the degree to which that other person’s conduct contributed thereto.

• Marginal note:Construction of reference to conduct

  (2) For the purposes of subsection (1), a reference to any conduct of “another person” includes any wrongful act or omission by that other person or by any person for whose wrongful act or omission that other person is by law responsible.

• Marginal note:Prohibited construction

  (3) Nothing in this Act shall be construed as limiting or restricting any right of recourse or indemnity that a person liable pursuant to section 6 may have against any other person.

• Marginal note:Limitation on liability of cargo owner

  (4) Notwithstanding anything in this Act, no person is liable pursuant to section 6, either alone or jointly and severally with one or more other persons, by reason only that the person is the owner of all or any part of the cargo of a ship, if the person can establish that the cargo or that part thereof is of such a nature, or is of such a nature and is carried in such a quantity, that, if it and any other cargo of the same nature that is carried by that ship were deposited by that ship in the arctic waters, the deposit would not constitute a contravention of subsection 4(1).

Marginal note:Evidence of financial responsibility

• 8 (1) The Governor in Council may require

  • (a) any person who engages in exploring for, developing or exploiting any natural resource on any land adjacent to the arctic waters or in any submarine area subjacent to the arctic waters,

  • (b) any person who carries on any undertaking on the mainland or islands of the Canadian arctic or in the arctic waters that will or is likely to result in the deposit of waste in the arctic waters or in any place under any conditions where that waste or any other waste that results from the deposit of that waste may enter the arctic waters,

  • (c) any person, other than a person described in paragraph (a), who proposes to construct, alter or extend any work or works on the mainland or islands of the Canadian arctic or in the arctic waters that, on completion thereof, will form all or part of an undertaking described in paragraph (b), or

  • (d) the owner of any ship that proposes to navigate or that navigates within any shipping safety control zone specified by the Governor in Council and, subject to subsection 7(4), the owners of the cargo of any such ship,

  to provide evidence of financial responsibility, in the form of insurance or an indemnity bond satisfactory to the Governor in Council, or in any other form satisfactory to the Governor in Council, in an amount determined in the manner prescribed by regulations made under section 9.

• Marginal note:Persons entitled to claim against insurance or bond

  (2) Evidence of financial responsibility in the form of insurance or an indemnity bond shall be in a form that will enable recovery, directly from the proceeds of the insurance or bond, by any person entitled pursuant to section 6 to claim against the person or persons giving that evidence.

Marginal note:Regulations respecting manner of determining limit of liability

• 9 (1) The Governor in Council may make regulations for the purposes of section 6 prescribing, in respect of any activity or undertaking engaged in or carried on by any person or persons described in paragraph 6(1)(a), (b) or (c), or in respect of any ship of which any such person is the owner or of all or part of whose cargo any such person is the owner, the manner of determining the limit of liability of any such person or persons pursuant to section 6.

• Marginal note:Matters to be taken into account

  (2) In the case of the owners of a ship and its cargo, the manner prescribed under subsection (1) shall take into account the size of the ship and the nature and quantity of the cargo carried or to be carried by it.

Plans and Specifications of Works

Marginal note:Plans and specifications to be provided

• 10 (1) Where any person proposes to construct, alter or extend any work described in subsection (2), the Governor in Council may require the person to provide the Governor in Council with a copy of such plans and specifications relating to the work as will enable the Governor in Council to determine whether the deposit of waste that will or is likely to occur if the construction, alteration or extension is carried out in accordance therewith would constitute a contravention of subsection 4(1).

• Marginal note:Work to which plans and specifications to relate

  (2) Subsection (1) applies in respect of any work on the mainland or islands of the Canadian arctic or in the arctic waters that, on completion thereof, will form all or part of an undertaking the operation of which will or is likely to result in the deposit of waste of any type in the arctic waters or in any place under any conditions where that waste or any other waste that results from the deposit of that waste may enter the arctic waters.

• Marginal note:Powers of Governor in Council

  (3) If, after reviewing any plans and specifications provided to the Governor in Council under subsection (1) and affording to the person who provided those plans and specifications a reasonable opportunity to be heard, the Governor in Council is of the opinion that the deposit of waste that will or is likely to occur if the construction, alteration or extension is carried out in accordance with those plans and specifications would constitute a contravention of subsection 4(1), the Governor in Council may, by order, either

  • (a) require such modifications in those plans and specifications as the Governor in Council considers to be necessary; or

  • (b) prohibit the carrying out of the construction, alteration or extension.

Shipping Safety Control Zones

Marginal note:Prescription of shipping safety control zones

• 11 (1) Subject to subsection (2), the Governor in Council may, by order, prescribe as a shipping safety control zone any area of the arctic waters that is specified in the order, and may, as the Governor in Council deems necessary, amend any such area.

• Marginal note:Publication of proposed orders

  (2) A copy of each order that the Governor in Council proposes to make under subsection (1) shall be published in the Canada Gazette and no order may be made under that subsection, based on any such proposal, except after the expiration of sixty days following publication of the proposal in the Canada Gazette.

Marginal note:Regulations relating to navigation in shipping safety control zones

• 12 (1) The Governor in Council may make regulations applicable to ships of any class specified therein, prohibiting any ship of that class from navigating within any shipping safety control zone specified therein

  • (a) unless the ship complies with standards prescribed by the regulations relating to

    • (i) hull and fuel tank construction, including the strength of materials used therein, the use of double hulls and the subdivision thereof into watertight compartments,

    • (ii) the construction of machinery and equipment, the electronic and other navigational aids and equipment and telecommunications equipment to be carried and the manner and frequency of maintenance thereof,

    • (iii) the nature and construction of propelling power and appliances and fittings for steering and stabilizing,

    • (iv) the manning of the ship, including the number of navigating and look-out personnel to be carried who are qualified in a manner prescribed by the regulations,

    • (v) with respect to any type of cargo to be carried, the maximum quantity thereof that may be carried, the method of stowage thereof and the nature or type and quantity of supplies and equipment to be carried for use in repairing or remedying any condition that may result from the deposit of any such cargo in the arctic waters,

    • (vi) the free-board to be allowed and the marking of load lines,

    • (vii) quantities of fuel, water and other supplies to be carried, and

    • (viii) the maps, charts, tide tables and any other documents or publications relating to navigation in the arctic waters to be carried;

  • (b) without the aid of a pilot, or of an ice navigator who is qualified in a manner prescribed by the regulations, at any time or during one or more periods of the year, if any, specified in the regulations, or without ice-breaker assistance of a kind prescribed by the regulations; and

  • (c) during one or more periods of the year, if any, specified in the regulations or when ice conditions of a kind specified in the regulations exist in that zone.

• Marginal note:Orders exempting ships of foreign powers

  (2) The Governor in Council may by order exempt from the application of any regulations made under subsection (1) any ship or class of ship that is owned or operated by a sovereign power, other than Canada, where the Governor in Council is satisfied that

  • (a) appropriate measures have been taken by or under the authority of that sovereign power to ensure the compliance of the ship with, or with standards substantially equivalent to, standards prescribed by regulations made under paragraph (1)(a) that would otherwise be applicable to it within any shipping safety control zone; and

  • (b) in all other respects all reasonable precautions have been or will be taken to reduce the danger of any deposit of waste resulting from the navigation of the ship within that shipping safety control zone.

• Marginal note:Certificates evidencing compliance

  (3) The Governor in Council may make regulations

  • (a) providing for the issue, to the owner or master of any ship that proposes to navigate within any shipping safety control zone specified therein, of a certificate evidencing, in the absence of any evidence to the contrary, the compliance of that ship with standards prescribed by regulations made under paragraph (1)(a) that are or would be applicable to it within that shipping safety control zone; and

  • (b) governing the use that may be made of any such certificate and the effect that may be given thereto for the purposes of any provision of this Act.

Marginal note:Destruction or removal of ships or their contents

• 13 (1) Where the Governor in Council believes on reasonable grounds that waste is being deposited or is likely to be deposited in the arctic waters by a ship that is within those waters and is in distress, stranded, wrecked, sunk or abandoned, the Governor in Council may cause the ship or any cargo or other material on board the ship to be destroyed, if necessary, or to be removed if possible to such place and sold in such manner as the Governor in Council may direct.

• Marginal note:Application of proceeds of sale

  (2) The proceeds from the sale of a ship or any cargo or other material pursuant to subsection (1) shall be applied towards meeting the expenses incurred by the Government of Canada in removing and selling the ship, cargo or other material, and any surplus shall be paid to the owner of that ship, cargo or other material.

Enforcement

Marginal note:Pollution prevention officers

• 14 (1) The Governor in Council may designate any person as a pollution prevention officer with such of the powers set out in sections 15 and 23 as are specified in the certificate of designation of that person.

• Marginal note:Certificate to be produced

  (2) A pollution prevention officer shall be furnished with a certificate of his designation specifying the powers set out in sections 15 and 23 that are vested in the officer, and on exercising any such power a pollution prevention officer shall, if so required, produce the certificate to any person in authority who is affected thereby and who requires the officer to do so.

Marginal note:Powers of pollution prevention officers

• 15 (1) Subject to subsection (3), a pollution prevention officer may at any reasonable time

  • (a) enter any area, place or premises occupied by any person described in paragraph 8(1)(a) or (b) in which the officer believes on reasonable grounds that

    • (i) there is any waste that may be or has been deposited in the arctic waters or on the mainland or islands of the Canadian arctic under any conditions where that waste or any other waste that results from the deposit of that waste may enter the arctic waters in contravention of subsection 4(1), or

    • (ii) there is being or has been carried on any activity that may result in or has resulted in waste that may be or has been so deposited;

  • (b) examine any waste found in that area, place or premises in bulk or open any container found therein that the officer believes on reasonable grounds contains any waste and take samples thereof; and

  • (c) require any person in that area, place or premises to produce for inspection or for the purpose of obtaining copies or extracts any books or other documents or papers concerning any matter relevant to the administration of this Act or the regulations.

• Marginal note:Powers in relation to works

  (2) Subject to subsection (3), a pollution prevention officer may at any reasonable time

  • (a) enter any area, place or premises in which any construction, alteration or extension of a work described in subsection 10(2) is being carried on; and

  • (b) conduct such inspections of the work being constructed, altered or extended as the officer deems necessary in order to determine whether any plans and specifications provided to the Governor in Council, and any modifications required by the Governor in Council, are being complied with.

• Marginal note:Exception where ship or dwelling-place

  (3) No pollution prevention officer may, pursuant to paragraph (1)(a) or (2)(a), enter a ship, a private dwelling-place or any part of any area, place or premises other than a ship that is designed to be used and is being used as a permanent or temporary private dwelling-place.

• Marginal note:Powers in relation to ships

  (4) A pollution prevention officer may

  • (a) board any ship that is within a shipping safety control zone and conduct such inspections thereof as will enable the officer to determine whether the ship complies with standards prescribed by any regulations made under section 12 that are applicable to it within that shipping safety control zone;

  • (b) order any ship that is in or near a shipping safety control zone to proceed outside the zone in such manner as the officer may direct, to remain outside the zone or to anchor in a place selected by the officer, if

    • (i) the officer suspects, on reasonable grounds, that the ship fails to comply with standards prescribed by any regulations made under section 12 that are or would be applicable to it within that shipping safety control zone,

    • (ii) the ship is within the shipping safety control zone or is about to enter the zone in contravention of a regulation made under paragraph 12(1)(b) or (c), or

    • (iii) the officer is satisfied, by reason of weather, visibility, ice or sea conditions, the condition of the ship or its equipment or the nature or condition of its cargo, that such an order is justified in the interests of safety; and

  • (c) where the officer is informed that a substantial quantity of waste has been deposited in the arctic waters or has entered the arctic waters or where, on reasonable grounds, the officer is satisfied that a grave and imminent danger of a substantial deposit of waste in the arctic waters exists,

    • (i) order all ships within a specified area of the arctic waters to report their positions to the officer, and

    • (ii) order any ship to take part in the clean-up of the waste or in any action to control or contain the waste.

Marginal note:Assistance to pollution prevention officers

16 The owner or person in charge of any area, place or premises entered pursuant to subsection 15(1) or (2), the master of any ship boarded pursuant to paragraph 15(4)(a) and every person found in the area, place or premises or on board the ship shall give a pollution prevention officer all reasonable assistance to enable the officer to carry out his duties and functions under this Act and shall furnish the officer with any information he may reasonably require.

Marginal note:Obstruction and false statements

17 No person shall obstruct or hinder, or knowingly make a false or misleading statement either orally or in writing to, a pollution prevention officer while the officer is engaged in carrying out his duties or functions under this Act.

Offences and Punishment

Marginal note:Contravention of subsection 4(1)

• 18 (1) Any person who contravenes subsection 4(1) and any ship that contravenes that subsection is guilty of an offence and liable on summary conviction to a fine not exceeding, in the case of a person, five thousand dollars and, in the case of a ship, one hundred thousand dollars.

• Marginal note:Continuing offences

  (2) Where an offence referred to in subsection (1) is committed by a person on more than one day or continued by him for more than one day, it shall be deemed to be a separate offence for each day on which it is committed or continued.

Marginal note:Additional offences by persons

• 19 (1) Any person who

  • (a) fails to make a report to a pollution prevention officer as and when required under subsection 5(1),

  • (b) fails to provide the Governor in Council with evidence of financial responsibility as and when required under subsection 8(1),

  • (c) fails to provide the Governor in Council with any plans and specifications required of the person under subsection 10(1), or

  • (d) constructs, alters or extends any work described in subsection 10(2)

    • (i) otherwise than in accordance with any plans and specifications provided to the Governor in Council in accordance with a requirement made under subsection 10(1), or with any such plans and specifications as required to be modified by any order made under subsection 10(3), or

    • (ii) contrary to any order made under subsection 10(3) prohibiting the carrying out of the construction, alteration or extension,

  is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars.

• Marginal note:Additional offences by ships

  (2) Any ship

  • (a) that navigates within a shipping safety control zone when the ship does not comply with standards prescribed by any regulations made under section 12 that are applicable to it within that shipping safety control zone,

  • (b) that navigates within a shipping safety control zone in contravention of a regulation made under paragraph 12(1)(b) or (c),

  • (c) that, having taken on board a pilot in order to comply with a regulation made under paragraph 12(1)(b), fails to comply with any reasonable directions given to it by the pilot in carrying out his duties,

  • (d) that fails to comply with any order of a pollution prevention officer under paragraph 15(4)(b) or (c) that is applicable to it,

  • (e) the master of which fails to make a report to a pollution prevention officer as and when required under subsection 5(2), or

  • (f) the master of which, or any person on board which, contravenes section 17,

  is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars.

• Marginal note:Contravention of section 17

  (3) Any person, other than the master of a ship or any person on board a ship, who contravenes section 17 is guilty of an offence punishable on summary conviction.

Marginal note:Offence by employee or agent

• 20 (1) In a prosecution of a person for an offence under subsection 18(1), it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of, and that all due diligence to prevent its commission was exercised by, the accused.

• Marginal note:Proof of offence by ship

  (2) In a prosecution of a ship for an offence under this Act, it is sufficient proof that the ship has committed the offence to establish that the act or neglect that constitutes the offence was committed by the master of or any person on board the ship, other than a pollution prevention officer or a pilot taken on board in compliance with a regulation made under paragraph12(1)(b), whether or not the person on board the ship has been identified.

• Marginal note:Orders and directions deemed given to ship

  (3) For the purposes of any prosecution of a ship for failing to comply with any order or direction of a pollution prevention officer or pilot, any order given by the officer or any direction given by the pilot to the master or any person on board the ship shall be deemed to have been given to the ship.

Marginal note:Certificate of analyst

• 21 (1) Subject to this section, a certificate purporting to be signed by an analyst and stating that the analyst has analyzed or examined a sample submitted by a pollution prevention officer to the analyst and stating the result of the analysis or examination is admissible in evidence in any prosecution for a contravention of subsection 4(1) and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

• Marginal note:Attendance of analyst

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

• Marginal note:Notice

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

Marginal note:Jurisdiction

• 22 (1) Where any person or ship is charged with having committed an offence under this Act, any court in Canada that would have had cognizance of the offence if it had been committed by a person within the limits of the ordinary jurisdiction of that court has jurisdiction to try the offence as if it had been so committed.

• Marginal note:Service on ship and appearance at trial

  (2) Where a ship is charged with having committed an offence under this Act, the summons may be served by leaving it with the master or any officer of the ship or by posting the summons on a conspicuous part of the ship, and the ship may appear by counsel or agent but, if it does not appear, a summary conviction court may, on proof of service of the summons, proceed ex parte to hold the trial.

Seizure and Forfeiture

Marginal note:Seizure of ship and cargo

• 23 (1) Where a pollution prevention officer suspects on reasonable grounds that

  • (a) any provision of this Act or the regulations has been contravened by a ship, or

  • (b) the owner of a ship or the owner of all or part of the cargo thereof has committed an offence under paragraph 19(1)(b),

  the officer may, with the consent of the Governor in Council, seize the ship and its cargo anywhere in the arctic waters or elsewhere in the territorial sea or internal or inland waters of Canada.

• Marginal note:Custody

  (2) Subject to subsection (3) and sections 24 to 26, a ship and cargo seized under subsection (1) shall be retained in the custody of the pollution prevention officer making the seizure or shall be delivered into the custody of such person as the Governor in Council directs.

• Marginal note:Perishable goods

  (3) Where all or any part of a cargo seized under subsection (1) is perishable, the pollution prevention officer or other person having custody of it may sell the cargo or the perishable portion, as the case may be, and the proceeds of the sale shall be paid to the Receiver General or shall be deposited in a bank, or an authorized foreign bank within the meaning of section 2 of the Bank Act, that is not subject to the restrictions and requirements referred to in subsection 524(2) of that Act, in respect of its business in Canada, to the credit of the Receiver General.

Marginal note:Court may order forfeiture

• 24 (1) Where a ship is convicted of an offence under this Act, or where the owner of a ship or an owner of all or part of the cargo thereof is convicted of an offence under paragraph 19(1)(b), the convicting court may, if the ship and its cargo were seized under subsection 23(1), in addition to any other penalty imposed, order that the ship and cargo or the ship or its cargo or any part thereof be forfeited and, on the making of the order, the ship and cargo or the ship or its cargo or part thereof are or is forfeited to Her Majesty in right of Canada.

• Marginal note:Forfeiture of proceeds of sale

  (2) Where any cargo or part thereof that is ordered to be forfeited under subsection (1) has been sold under subsection 23(3), the proceeds of the sale are, on the making of that order, forfeited to Her Majesty in right of Canada.

Marginal note:Redelivery of ship and cargo on bond

• 25 (1) Where a ship and cargo have been seized under subsection 23(1) and proceedings that could result in an order that the ship and cargo be forfeited have been instituted, the court in or before which the proceedings have been instituted may, with the consent of the Governor in Council, order redelivery of the ship and cargo, to the person from whom they were seized, on the giving of security to Her Majesty in right of Canada by bond, with two sureties, in an amount and form satisfactory to the Governor in Council.

• Marginal note:Seized ship, etc., to be returned unless proceedings instituted

  (2) Any ship and cargo seized under subsection 23(1) or the proceeds realized from a sale of any perishable cargo under subsection 23(3) shall be returned or paid to the person from whom the ship and cargo were seized within thirty days from the seizure thereof unless, prior to the expiration of the thirty days, proceedings are instituted in respect of an offence alleged to have been committed by the ship against this Act or in respect of an offence under paragraph 19(1)(b) alleged to have been committed by the owner of the ship or an owner of all or part of the cargo thereof.

• Marginal note:Return if no forfeiture ordered

  (3) Where a ship and cargo have been seized under subsection 23(1) and proceedings referred to in subsection (2) have been instituted, but the ship and cargo or ship or cargo or part thereof or any proceeds realized from the sale of the cargo or any part thereof are not at the final conclusion of the proceedings ordered to be forfeited, they or it shall, subject to subsection (4), be returned or the proceeds shall be paid to the person from whom the ship and cargo were seized.

• Marginal note:Exception in case of conviction and fine

  (4) Where the proceedings referred to in subsection (3) result in a conviction and a fine is imposed,

  • (a) the ship and cargo or proceeds may be detained until the fine is paid;

  • (b) the ship and cargo may be sold under execution in satisfaction of the fine; or

  • (c) the proceeds realized from a sale of the cargo or any part thereof may be applied in payment of the fine.

Marginal note:Disposal of forfeited ship

26 Where proceedings referred to in subsection 25(2) are instituted and, at the final conclusion of those proceedings, a ship and cargo or ship or cargo or part thereof are or is ordered to be forfeited, they or it may, subject to section 27, be disposed of as the Governor in Council directs.

Marginal note:Protection of persons claiming interest

• 27 (1) The provisions of sections 74 to 77 of the Fisheries Act apply, with such modifications as the circumstances require, in respect of any ship and cargo forfeited under this Act as though the ship and cargo were, respectively, a vessel and goods forfeited under subsection 72(1) of that Act.

• Marginal note:Reading references in applying Fisheries Act

  (2) References to “the Minister” in sections 75 and 76 of the Fisheries Act shall, in applying those sections for the purposes of this Act, be read as references to the Governor in Council and the phrase “other than a person convicted of the offence that resulted in the forfeiture or a person in whose possession the vessel, vehicle, article, goods or fish were when seized” shall be deemed to include a reference to the owner of the ship where it is the ship that is convicted of the offence that results in the forfeiture.

Delegation

Marginal note:Delegation of powers of the Governor in Council

• 28 (1) The Governor in Council may, by order, delegate to any member of the Queen’s Privy Council for Canada designated in the order the power and authority to do any act or thing that the Governor in Council is directed or empowered to do under this Act and, on the making of such an order, the provisions of this Act that direct or empower the Governor in Council and to which the order relates shall be read as if the title of the member of the Queen’s Privy Council for Canada designated in the order were substituted therein for the expression “the Governor in Council”.

• Marginal note:Limitation

  (2) This section does not apply to authorize the Governor in Council to delegate any power vested in the Governor in Council under this Act to make regulations, prescribe shipping safety control zones or designate pollution prevention officers and their powers, other than pollution prevention officers with only those powers set out in subsection 15(1) or (2).

Disposition of Fines

Marginal note:Fines to be paid to Receiver General

29 All fines imposed pursuant to this Act belong to Her Majesty in right of Canada and shall be paid to the Receiver General.