Fishing and Recreational Harbours Act

An Act respecting the administration and development of certain fishing and recreational harbours in Canada Short title This Act may be cited as the Fishing and Recreational Harbours Act. Definitions In this Act, agency, in relation to a province, includes any incorporated or unincorporated city, town, municipality, village, township, rural municipality, regional district administration or local improvement district administration, any council of a band within the meaning of the Indian Act, the Council, as defined in subsection 2(1) of the shíshálh Nation Self-Government Act, and a first nation named in Schedule II to the Yukon First Nations Self-Government Act; (organisme) fishing or recreational harbour means any harbour, wharf, pier, breakwater, slipway, marina or part thereof, together with machinery, works, land and structures related or attached thereto, and any other facility, installation, works or part thereof located on or adjacent to water where accommodation or services are provided principally for fishing or recreational vessels or the occupants thereof; (port de pêche ou de plaisance) goods means tangible personal property other than vessels; (marchandises) Minister means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; (ministre) scheduled harbour means any fishing or recreational harbour or portion thereof included in a schedule prescribed by the regulations; (ports inscrits) vessel includes every description of ship, boat, craft, floating home or other structure used or capable of being used solely or partly for aquatic navigation without regard to method or lack of propulsion. (bateau) Application of Act Nothing in this Act applies to any port, as defined in section 5 of the Canada Marine Act, or any harbour, works or property under the jurisdiction of a harbour commission established under an Act of Parliament; or any harbour, wharf, pier or breakwater under the control and management of any member of the Queen’s Privy Council for Canada other than the Minister. Exemption This Act does not affect any of the powers or duties of the Minister of Transport or the Minister of Public Works and Government Services under any other Act of Parliament or regulations made pursuant thereto. Harbours under control of Minister The use, management and maintenance of every scheduled harbour, the enforcement of regulations relating thereto and the collection of charges for the use of every scheduled harbour are under the control and administration of the Minister. Minister may undertake projects The Minister may undertake projects for the acquisition, development, construction, improvement or repair of any scheduled harbour or any fishing or recreational harbour to which this Act applies. Agreements with provinces The Minister may, subject to the regulations, enter into an agreement with any province to provide for the undertaking jointly with the government of the province or any agency thereof of any project that the Minister is authorized to undertake under subsection (1); and the payment to the province of contributions or grants in respect of the cost or any part of the cost of any project that is undertaken by the government of the province or any agency thereof and that the Minister is authorized to undertake under subsection (1). Agreements with persons The Minister may, subject to the regulations, enter into an agreement with any person to provide for the undertaking jointly with that person of any project that the Minister is authorized to undertake under subsection (1); and the payment to that person of contributions or grants in respect of the cost or any part of the cost of any project that is undertaken by that person and that the Minister is authorized to undertake under subsection (1) and in respect of the cost of any planning studies and advisory services relating to any such project. Studies For the purpose of assisting the formulation and assessment of projects undertaken under subsection (1), the Minister may, subject to the regulations, undertake economic or other studies alone or jointly with the government of any province or agency thereof or with any person or educational institution. Services of other departments The Minister shall, in carrying out any project or study under this Act, make use, wherever possible, of the services and facilities of other departments, boards or agencies of the Government of Canada. Provisions to be included in agreements Every agreement entered into pursuant to subsection 5(2) or (3) shall specify the respective proportions of the cost of any project to which the agreement relates that shall be paid by the Minister and the province or person or the contributions or grants in respect of that project that shall be paid by the Minister, and the times at which those amounts to be paid by the Minister or the province or person shall be paid; the authority that shall be responsible for the undertaking, operation and maintenance of any project or any part thereof to which the agreement relates; the respective proportions of the revenues from any project to which the agreement relates that are to be paid to the Minister and the province or person; and the terms and conditions respecting the operation and maintenance of any project to which the agreement relates and the charges, if any, to be charged to persons to whom any of the benefits of the project are made available. Leases, licences and agreements for use of scheduled harbours The Minister may, subject to the regulations, lease any scheduled harbour or any part thereof to any person; grant a licence to any person for the use of any scheduled harbour or any part thereof; and enter into an agreement with the government of any province or any agency thereof for the occupancy and use of any scheduled harbour or any part thereof. Regulations The Governor in Council may make regulations prescribing schedules naming and delimiting or describing the fishing or recreational harbours or portions thereof belonging to Her Majesty in right of Canada that are under the control and administration of the Minister for the purposes of this Act; for the maintenance of order and the safety of persons and property at any scheduled harbour; not inconsistent with any other Act of Parliament or regulations made thereunder, for the control of mooring, berthing, loading and discharging of vessels at any scheduled harbour; not inconsistent with any other Act of Parliament or regulations made thereunder, for the control of pollution at any scheduled harbour; prescribing standards for the accommodation and services provided or to be provided at any scheduled harbour; prescribing charges for the use of any scheduled harbour; prescribing the duties or functions of persons appointed or designated under this Act or any other Act of Parliament to supervise or manage any fishing or recreational harbour to which this Act applies; governing inquiries into accidents and incidents held under section 26; prescribing terms and conditions of agreements entered into pursuant to subsection 5(2) or (3); prescribing the manner of undertaking economic or other studies pursuant to subsection 5(4); prescribing terms and conditions of leases, licences and agreements entered into or granted pursuant to section 8; prescribing the form of the tickets that may be issued pursuant to paragraph 25(1)(a); respecting the detention and safe-keeping of vessels and goods seized under this Act and the payment of any reasonable costs incidental thereto; prescribing the manner of disposing of anything forfeited under this Act; and generally for carrying out the purposes and provisions of this Act. Enforcement officers For the purposes of enforcing this Act and the regulations, the Minister may designate as an enforcement officer any person who is, in the opinion of the Minister, qualified to be so designated and furnish that person with a certificate of his designation. Production of certificate of designation In carrying out the duties and functions of an enforcement officer under this Act, an enforcement officer shall, if so requested, produce the certificate of designation of the enforcement officer as such to the person appearing to be in charge of any vessel, vehicle, premises or goods in respect of which the officer is acting. Powers of enforcement officers Where an enforcement officer believes on reasonable grounds that a provision of this Act or the regulations is not being complied with, the officer may with a warrant issued under section 11.1, board any vessel or enter any vehicle or premises where or in respect of which the officer believes on reasonable grounds there may be evidence of the non-compliance and make any inspection the officer deems necessary; require the person appearing to be in charge of the vessel, vehicle or premises to produce for inspection, or for the purpose of making copies or extracts therefrom, any log book, document or paper that may, in the officer’s opinion, provide evidence of that non-compliance; require any person found on board any vessel or in any vehicle or premises to give all reasonable assistance to enable the officer to carry out his duties and functions under this Act; and prohibit the use of any scheduled harbour by any person, vessel or vehicle that the officer believes on reasonable grounds to be involved in that non-compliance and direct the removal of that person, vessel or vehicle from the harbour. Authority to issue warrant Where on ex parte application a justice of the peace is satisfied by information on oath that there are reasonable grounds to believe that there is in any vessel, vehicle or premises anything on or in respect of which any contravention under this Act has been or is suspected to have been committed, or anything that there are reasonable grounds to believe will afford evidence with respect to the commission of any contravention under this Act, the justice of the peace may issue a warrant under his hand authorizing the enforcement officer named therein to enter that vessel, vehicle or premises subject to such conditions as may be specified in the warrant in order to make any inspection the enforcement officer deems necessary. Use of force In executing a warrant issued under section 11.1, the enforcement officer named therein shall not use force unless the officer is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. Where warrant not necessary An enforcement officer may exercise the powers referred to in paragraph 11(a) without a warrant issued under section 11.1 if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant. Exigent circumstances For the purposes of section 11.3, exigent circumstances include circumstances in which the delay necessary to obtain a warrant under section 11.1 would result in danger to human life or safety or the loss or destruction of evidence. Obstruction of enforcement officer Where an enforcement officer is carrying out the duties and functions of an enforcement officer under this Act, no person shall fail to comply with any reasonable requirement or direction of the officer; knowingly make a false or misleading statement, either orally or in writing, to the officer; or otherwise obstruct or hinder the officer. Debt due to Her Majesty All charges prescribed by regulations made under this Act for the use of any scheduled harbour constitute a debt due to Her Majesty in right of Canada jointly and severally by the owner and any other person in charge of the vessel or goods in respect of which the charges are payable. Other remedies available Nothing in this Act prevents a debt payable under this Act from being recovered, together with all costs, from the debtor in any court of competent jurisdiction or the exercise against the debtor of any other right or remedy available at law. Obstruction of scheduled harbours Where any vessel or goods are left or abandoned at any scheduled harbour and an enforcement officer believes on reasonable grounds that the vessel or goods impede, interfere with or render difficult or dangerous the use of the harbour, the officer may direct the person appearing to be in charge of the vessel or goods to remove the vessel or goods from the harbour to such place as the officer deems suitable. Seizure and removal If the person to whom a direction is given pursuant to subsection (1) fails to comply with the direction or if no person appears to be in charge of the vessel or goods, the enforcement officer may seize the vessel or goods and remove them to such place as the officer deems suitable, and the costs of the seizure and removal are recoverable in the same manner as a debt due to Her Majesty in right of Canada for charges under this Act. Seizure and detention Where an enforcement officer believes on reasonable grounds that any amount is due and payable under this Act for charges in respect of any vessel or goods, or any provision of this Act or the regulations relating to any vessel or goods has been contravened, the officer may seize and detain the vessel or goods. Application for order directing forfeiture Where, at the time any vessel or goods are seized under this Act, no person appears to be in possession thereof or to have the right to the possession thereof, the Minister may apply to any court of competent jurisdiction for an order directing the forfeiture of the vessel or goods to Her Majesty in right of Canada. Forfeiture granted Where, on the hearing of an application made under subsection (1), the court is satisfied that no person appears to be in possession or to have the right to the possession of the vessel or goods seized, it may order the forfeiture thereof to Her Majesty in right of Canada and on such forfeiture the vessel or goods may be disposed of as the Minister directs. Protection of persons claiming interest Sections 74 to 77 of the Fisheries Act applies, with such modifications as the circumstances require, in respect of anything forfeited under subsection (2) as though it were an article forfeited under subsection 72(1) of that Act. Forfeiture refused Where, on the hearing of an application made under subsection (1), the court is not satisfied that the vessel or goods seized should be forfeited, it shall order the vessel or goods to be dealt with according to the other provisions of this Act and the regulations applicable thereto. Sale of perishable goods Where, in the opinion of the enforcement officer, any goods seized and detained under this Act are likely to rot, spoil or otherwise perish, the officer may sell or otherwise dispose of the goods in such manner and for such price as is reasonable in the circumstances. Proceeds of sale The proceeds of a sale or other disposition referred to in subsection (1) shall be paid to the Receiver General or deposited to the credit of the Receiver General in a bank. Return of property seized Subject to subsection (2), any vessel or goods seized under this Act and any proceeds of a sale or other disposition thereof made under section 17 shall be returned to the person from whom the vessel or goods were seized or to any other person entitled to the possession thereof after the provisions of this Act and the regulations that apply to the vessel or goods have, in the opinion of an enforcement officer, been complied with; or the expiration of twenty-one days from the day of the seizure, unless before that time an application for an order authorizing the sale of the vessel or goods has been made pursuant to section 19. Restriction Subsection (1) does not apply in respect of any vessel or goods forfeited pursuant to section 16. Application for order authorizing sale The Minister may, before the expiration of twenty-one days from the day of the seizure of any vessel or goods under this Act, apply to any court of competent jurisdiction for an order authorizing the sale of the vessel or goods. Redelivery on security The court may order the redelivery of any vessel or goods seized under this Act to the person from whom the vessel or goods were seized or to any other person entitled to the possession thereof after security by bond, with two sureties, in such amount and form as is satisfactory to the Minister, is given to Her Majesty in right of Canada or after security of a cash deposit, in an amount satisfactory to the Minister, is given to Her Majesty in right of Canada. Order of sale refused Where, on the hearing of an application made under subsection (1), the court is not satisfied that the vessel or goods seized should be sold, it may order that the vessel or goods be returned or, if a sale or other disposition of the goods has been made pursuant to section 17, it may order that any proceeds thereof be remitted to the person from whom the vessel or goods were seized or to any other person entitled to the possession thereof. Order of sale granted Where, on the hearing of an application made under subsection (1), the court is satisfied that the vessel or goods seized should be sold, it may order the sale thereof and thereupon the Minister may sell the vessel or goods in such manner and for such price as the court determines is reasonable in the circumstances. Where the total amount realized from a sale made under subsection (4) or any other disposition made under section 17, or both, exceeds the amount payable for rates and charges under this Act together with all costs and reasonable expenses incurred in connection with the sale or other disposition and any removal, seizure or detention under this Act, the Minister shall remit the excess amount to the person then appearing to be entitled thereto. Idem Where it appears to the Minister that no person is entitled to the excess amount mentioned in subsection (5), that amount shall be paid to the Receiver General. Contravening section 12 or regulations Every person who contravenes section 12 or the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both. Officers, etc., of corporations Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted. Trial of offences A complaint or information in respect of an offence under this Act may be heard, tried or determined by a court if the accused is resident or carrying on business within the territorial jurisdiction of that court although the matter of the complaint or information did not arise in that territorial jurisdiction. Offence by employee or agent In any prosecution for an offence under this Act, 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 the accused and that the accused exercised all due diligence to prevent its commission. Copies and extracts as evidence Subject to subsections (2) and (3), a copy or extract made by an enforcement officer pursuant to paragraph 11(b) and purporting to be certified under the signature of that enforcement officer as a true copy or extract is admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the copy or extract and, in the absence of any evidence to the contrary, has the same probative force as the original document would have if it had been proved in the ordinary way. Attendance of enforcement officer The party against whom any copy or extract is produced pursuant to subsection (1) may, with leave of the court, require the attendance of the enforcement officer for the purposes of cross-examination. Notice No copy or extract referred to in subsection (1) shall be admitted in evidence 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 duplicate of the copy or extract. Regulations relating to offences The Governor in Council may by regulation designate any offence under this Act or the regulations as an offence with respect to which notwithstanding the provisions of the Criminal Code, any person designated as an enforcement officer pursuant to section 10 may lay an information and issue and serve a summons by completing a ticket in the form prescribed by regulation, affixing that person’s signature thereto and delivering the ticket to the person alleged to have committed the offence specified therein at the time the offence is alleged to have been committed; or the summons may be served on an accused by mailing the summons to the accused at the latest known address of the accused. Voluntary payment of fine A regulation made under this section shall establish a procedure for voluntarily entering a plea of guilty and paying a fine in respect of each offence to which the regulation relates and shall fix the amount of the fine that may be so paid in respect of each such offence. Fixing of fines A fine fixed in respect of an offence by a regulation made under this section may be lower for a first offence than for any subsequent offence but in no case shall it be greater than fifty dollars. Minister may direct inquiry The Minister may direct an inquiry to be made, subject to the Canadian Transportation Accident Investigation and Safety Board Act, whenever an accident or incident that results or is likely to result in death or injury to any person, damage to property or danger to the health or safety of the public has occurred at any scheduled harbour and authorize any qualified persons to conduct the inquiry. Powers of persons conducting inquiries Every person authorized by the Minister to conduct an inquiry under subsection (1) shall have all the powers of a commissioner appointed under Part I of the Inquiries Act. [Repealed, 1989, c. 3, s. 44] Appointment of officers or employees For the purposes of this Act, the Minister may appoint and fix the remuneration of such officers or employees as the Minister thinks proper for the operation, administration and management of any scheduled harbours, and the officers or employees so appointed shall perform such duties or functions as the Minister may direct or as may be prescribed by regulations made under this Act. Paragraph 9(l) is repealed. The heading preceding section 25 and section 25 are repealed.