Budget Implementation Act, 2019, No. 1 (S.C. 2019, c. 29)

Marginal note:Proceeding without a pilot — persons

• 47 (1) The owner, master or person in charge of a ship commits an offence if the ship is subject to compulsory pilotage and proceeds through a compulsory pilotage area without being under the conduct of a licensed pilot for that compulsory pilotage area or a regular member of the ship’s complement who is a pilotage certificate holder for that compulsory pilotage area.

• Marginal note:Proceeding without a pilot — ship

  (2) A ship commits an offence if it is subject to compulsory pilotage and proceeds through a compulsory pilotage area without being under the conduct of a licensed pilot for that compulsory pilotage area or a regular member of the ship’s complement who is a pilotage certificate holder for that compulsory pilotage area.

• Marginal note:Non-application

  (3) Subsections (1) and (2) do not apply if

  • (a) the master of the ship takes the conduct of it in accordance with subsection 38.02(1);

  • (b) the relevant Authority waives compulsory pilotage; or

  • (c) the ship is in Canadian waters that are contiguous with waters of the United States, the ship is under the conduct of an individual who is authorized to have the conduct of a ship by an appropriate authority of the United States and the conditions set out in the regulations are met.

• Marginal note:Punishment — individuals

  (4) Every individual who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.

• Marginal note:Punishment — other persons

  (5) Every person, other than an individual, that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000.

• Marginal note:Punishment — ships

  (6) Every ship that commits an offence under subsection (2) is liable on summary conviction to a fine of not more than $1,000,000.

Marginal note:Offence — persons

• 48 (1) Every person commits an offence that contravenes

  • (a) a provision of this Act, other than section 15.3 or subsection 47(1);

  • (b) a provision of the regulations;

  • (c) a direction under subsection 46.12(2) or (3);

  • (d) a direction under subsection 46.22(1); or

  • (e) a direction under section 52.3.

• Marginal note:Punishment — individuals

  (2) Every individual who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $500,000 or to imprisonment for a term of not more than 12 months, or to both.

• Marginal note:Punishment — other persons

  (3) Every person, other than an individual, that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $500,000.

Marginal note:Contravention of section 15.3

48.1 A person that contravenes section 15.3 commits an offence and is liable on summary conviction to a fine of not more than $10,000 for each day on which the offence is committed or continued but is not liable to imprisonment.

Marginal note:Offence — ships

• 48.11 (1) Every ship commits an offence that contravenes

  • (a) subsection 52.1(2) or 52.2(5);

  • (b) a provision of the regulations; or

  • (c) a direction given under paragraph 46.12(3)(b) or subsection 46.12(4).

• Marginal note:Punishment

  (2) Every ship that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $500,000.

Marginal note:Continuing offences

48.2 An offence under section 48 or 48.11 that is committed or continued on more than one day constitutes a separate offence for each day on which it is committed or continued.

Marginal note:Court order

48.3 If a person is convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

• (a) prohibiting the person from performing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

• (b) directing the person to take any action the court considers appropriate to remedy or avoid any harm that results or may result from the commission of the offence;

• (c) prohibiting the person from exercising the rights or privileges of a licence, pilotage certificate, waiver or exemption order under this Act for the period or at the times and places that may be specified in the order; and

• (d) prohibiting the person from operating a ship or providing services essential to the operation of a ship for the period or at the times and places that may be specified in the order.

Marginal note:Service on ship

• 48.4 (1) If a ship is charged with an offence under this Act, the summons is to be served

  • (a) by delivering it to the authorized representative of the ship or, in the absence of an authorized representative, a person in charge of the ship; or

  • (b) if service cannot reasonably be effected in the manner provided in paragraph (a), by posting the summons on any conspicuous part of the ship.

• Marginal note:Appearance at trial

  (2) If a ship is charged with an offence under this Act, the ship may appear by counsel or representative before the court. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

Marginal note:Proof of offence by ship

48.5 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 omission that constitutes the offence was committed by a person in charge of the ship, whether or not the person has been identified.

Marginal note:Party to offence committed by ship

• 48.6 (1) If a ship commits an offence under this Act and a person in charge of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, that person is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.

• Marginal note:Party to offence committed by corporation

  (2) If a corporation commits an offence under this Act, any director, officer or agent or mandatary 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 liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Marginal note:Offence by employee or agent or mandatary

48.7 A person is liable for an offence that is committed by the person’s employee or their agent or mandatary, whether or not the employee or agent or mandatary who actually committed the offence is identified or prosecuted for the offence under this Act.

Marginal note:Direction to ship

48.8 For the purposes of prosecuting a ship for contravening a direction given under this Act, a direction is deemed to have been given to the ship if

• (a) it is given to the authorized representative or a person in charge of the ship; or

• (b) in the case of a direction that cannot be given to any person referred to in paragraph (a) despite reasonable efforts having been made to do so, a copy of it is posted on any conspicuous part of the ship.

Marginal note:Due diligence defence — persons

• 49 (1) A person is not to be found guilty of an offence under this Act, other than in relation to a contravention of section 46.16, 46.21 or 46.25, if they establish that they exercised due diligence to prevent its commission.

• Marginal note:Due diligence defence — ships

  (2) A ship is not to be found guilty of an offence under this Act if the person that committed the act or omission that constitutes the offence establishes that they exercised due diligence to prevent its commission.

Marginal note:Limitation or prescription period

• 50 (1) Proceedings by way of summary conviction under this Act may be instituted no later than two years after the day on which the Minister becomes aware of the subject matter of the proceedings.

• Marginal note:Certificate of Minister

  (2) A document that purports to have been issued by the Minister and that certifies the day on which that Minister became aware of the subject matter of the proceedings is admissible in evidence without proof of the signature or official character of the individual appearing to have signed the document and is evidence that the Minister became aware of the subject matter on that day.

• Marginal note:Defendant outside Canada

  (3) If the proceedings cannot be commenced because the proposed defendant is outside Canada, the proceedings may be commenced no later than 60 days after the defendant arrives in Canada.

Marginal note:Jurisdiction in relation to offences

51 If a person or ship is charged with 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 or ship within the limits of its ordinary jurisdiction has jurisdiction to try the offence as if it had been committed there.

Marginal note:Reporting of alleged contravention

• 51.1 (1) An individual who has reasonable grounds to believe that a person or ship has contravened or intends to contravene a provision of this Act or the regulations or a direction under this Act may notify the Minister of the particulars of the matter and may request that their identity be kept confidential with respect to the notification.

• Marginal note:Confidentiality

  (2) The identity of an individual to whom the Minister has provided an assurance of confidentiality may be disclosed by the Minister only in accordance with the Privacy Act.

Regulations, Exemption Orders, Interim Orders and Directions

Marginal note:Regulations

• 52 (1) The Governor in Council may make regulations respecting the provision of pilotage services, including regulations

  • (a) establishing compulsory pilotage areas;

  • (b) respecting which ships or classes of ships are subject to compulsory pilotage;

  • (c) respecting waivers of compulsory pilotage;

  • (d) respecting master-pilot exchanges;

  • (e) respecting the classes of licences and classes of pilotage certificates that are to be issued as well as the form and manner of their issuance;

  • (f) respecting the qualifications that are required of an applicant for a licence or pilotage certificate, or any class of licence or pilotage certificate, for a compulsory pilotage area, including the applicant’s physical and mental fitness, degree of general and local knowledge, skill, training, experience and proficiency in one or both of the official languages of Canada;

  • (g) respecting skill and knowledge examinations, medical examinations, apprenticeship, the provision of documents and recommendations and other means of determining whether an individual meets the qualifications required under paragraph (f);

  • (h) respecting the conditions of a licence or pilotage certificate or the conditions of any class of licence or pilotage certificate;

  • (i) limiting the number of licences or classes of licences that may be issued for a compulsory pilotage area;

  • (j) respecting the information to be provided and the procedures and practices to be followed by a ship that is about to enter, leave or proceed within a compulsory pilotage area;

  • (k) respecting the minimum number of licensed pilots or pilotage certificate holders that are required to be on board a ship at any time and which class of licence or pilotage certificate that they are required to hold;

  • (l) respecting additional training and periodic medical examinations for licensed pilots and pilotage certificate holders;

  • (m) respecting risk assessments;

  • (n) respecting the development and implementation of management systems by the Authorities; and

  • (o) respecting fees and charges to be paid in relation to the administration of this Act, including the development of regulations, and the enforcement of this Act.

• Marginal note:United States pilots and waters

  (2) With respect to Canadian waters that are contiguous with waters of the United States, the regulations may set out the conditions under which

  • (a) an individual who is authorized to have the conduct of a ship by an appropriate authority of the United States may pilot in Canadian waters; and

  • (b) a licensed pilot or pilotage certificate holder may have the conduct of a ship in waters of the United States.

• Marginal note:Paragraph (1)(l)

  (3) Regulations referred to in paragraph (1)(l) may distinguish between licensed pilots and between pilotage certificate holders on the basis of the class of licence or pilotage certificate they hold.

Marginal note:Exemption orders

• 52.1 (1) The Minister may, by order, exempt for a period of not more than three years any person or ship from the application of any provision of this Act or the regulations, subject to any conditions that the Minister considers appropriate, if the exemption would allow the undertaking of research and development, including in respect of any type of ships, technologies, systems, components or procedures and practices that may, in the Minister’s opinion, enhance marine safety or environmental protection.

• Marginal note:Compliance with conditions

  (2) Every person or ship subject to a condition of the exemption order shall comply with that condition.

• Marginal note:Publication

  (3) The Minister shall, as soon as feasible after making an exemption order, publish a notice of it on a Government of Canada website or by any other means that the Minister considers appropriate.

Marginal note:Interim orders

• 52.2 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with an urgent issue related to the provision of pilotage services that poses a significant risk to safety, human health or the environment.

• Marginal note:Cessation of effect

  (2) The interim order has effect from the time that it is made but ceases to have effect on the earliest of

  • (a) the day on which it is repealed,

  • (b) the day on which a regulation made under this Act that has the same effect as the interim order comes into force,

  • (c) one year after the day on which it is made or any shorter period that may be specified in it, unless it is extended by the Governor in Council, and

  • (d) the day that is specified in the order of the Governor in Council, if the Governor in Council extends the interim order.

• Marginal note:Extension — Governor in Council

  (3) The Governor in Council may extend the interim order for a period of no more than two years after the end of the applicable period referred to in paragraph (2)(c).

• Marginal note:Restriction

  (4) If an interim order is extended by the Governor in Council, the Minister is not authorized to remake the interim order after it ceases to have effect.

• Marginal note:Compliance with interim order

  (5) Every person or ship subject to an interim order shall comply with it.

• Marginal note:Contravention of unpublished order

  (6) No person or ship may be convicted of an offence or found liable for a violation consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person or ship had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons or ships likely to be affected by it.

• Marginal note:Publication

  (7) An interim order is to be published in the Canada Gazette within 23 days after it is made.

• Marginal note:Tabling of order

  (8) The Minister shall ensure that a copy of each interim order is tabled in each House of Parliament within 15 days after it is made. It is to be sent to the Clerk of the House if the House is not sitting.

Marginal note:Direction to licensed pilot or pilot corporation

• 52.3 (1) The Minister may, in writing, direct a licensed pilot or pilot corporation

  • (a) to cease an activity that poses a risk to the safety of navigation, including the safety of the public and marine personnel, or to human health, property or the environment; or

  • (b) to conduct an activity that protects the safety of navigation, including the safety of the public and marine personnel, or that protects human health, property or the environment.

• Marginal note:Exceptional circumstances

  (2) The Minister is not authorized to make the direction unless the Minister is satisfied that the direction is necessary to deal with exceptional circumstances that involve a risk to the safety of navigation, including the safety of the public and marine personnel, or to human health, property or the environment.

• Marginal note:Validity period

  (3) The direction is valid for the period specified in it as long as that period ends no more than 30 days after the day on which it is made.

Marginal note:Incorporation by reference

52.4 The limitation set out in paragraph 18.1(2)(a) of the Statutory Instruments Act, to the effect that a document is to be incorporated as it exists on a particular date, does not apply to any power to make regulations under this Act.

Marginal note:Statutory Instruments Act

52.5 The following are not statutory instruments for the purposes of the Statutory Instruments Act:

• (a) a direction given under subsection 46.12(2), (3) or (4);

• (b) a detention order made under section 46.2;

• (c) a direction given under subsection 46.22(1);

• (d) an exemption order made under section 52.1;

• (e) an interim order made under section 52.2; and

• (f) a direction given under section 52.3.