Fisheries Act (R.S.C., 1985, c. F-14)

Marginal note:Exercise of powers

39.1 Every power that may be exercised in Canada by an inspector under this Act may be exercised anywhere this Act applies.

Marginal note:Offence and punishment

• 40 (1) Every person who contravenes subsection 34.4(1) or 35(1) is guilty of an offence and liable

  • (a) on conviction on indictment,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

• Marginal note:Offence and punishment

  (2) Every person who contravenes subsection 36(1) or (3) is guilty of an offence and liable

  • (a) on conviction on indictment,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) in the case of an individual,

      • (A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,

    • (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

      • (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and

    • (iii) in the case of a corporation that the court has determined to be a small revenue corporation,

      • (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

      • (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

• Marginal note:Small revenue corporation status

  (2.1) For the purpose of subsections (1) and (2), a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

• Marginal note:Relief from minimum fine

  (2.2) The court may impose a fine that is less than the minimum amount provided for in subsection (1) or (2) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in either of those subsections.

• Marginal note:Other offences

  (3) Every person who

  • (a) in carrying on a work, undertaking or activity, fails to comply with a prescribed condition referred to in paragraph 34.4(2)(a) or 35(2)(a), with a condition set out in an authorization or a permit, as the case may be, issued under paragraph 34.4(2)(b) or (c) or 35(2)(b) or (c) or subsection 35.1(3) or 35.2(7), or with a condition imposed by regulations made under subsection 36(5) or (5.2),

  • (a.1) fails to provide any document or other information as requested by the Minister under subsection 37(1) within a reasonable time after the request is made,

  • (a.2) fails to provide any document or other information required to be provided under subsection 35.2(3) within the prescribed period,

  • (a.3) fails to provide any additional information that is required to be provided under subsection 35.2(4) within the time and in the manner that the Minister specifies,

  • (b) fails to provide or submit any material, information or report that is to be provided or submitted under regulations made pursuant to subsection 37(3),

  • (c) fails to provide notification that he or she is required to provide under subsection 38 (4), (4.1) or (5),

  • (d) carries on any work, undertaking or activity described in subsection 37(1)

    • (i) otherwise than in accordance with any document and other information relating to the work, undertaking or activity that they provide to the Minister under that subsection,

    • (ii) otherwise than in accordance with any such document and other information as required to be modified by any order of the Minister under paragraph 37(2)(a), or

    • (iii) contrary to any order made by the Minister under subsection 37(2),

  • (d.1) carries on any work, undertaking or activity described in subsection 35.2(3) otherwise than in accordance with any document and other information relating to the work, undertaking or activity that they provide to the Minister under that subsection or subsection 35.2(4),

  • (e) fails to take any reasonable measures that he or she is required to take under subsection 38(6) or fails to take those measures in the required manner,

  • (f) fails to provide a report that he or she is required to provide under subsection 38(7),

  • (g) fails to comply with the whole or any part of a direction of an inspector or a fishery officer under subsection 38(7.1),

  • (h) fails to comply with a request of the Minister made under subsection 34.3(1), an order of the Minister made under subsection 34.3(2) or (3) or a provision of a regulation made under subsection 34.3(7),

  • (i) fails to comply with all or any part of a direction of a fishery officer or fishery guardian with respect to the application of any regulations made under paragraph 43(1)(o),

  • (j) carries on any work, undertaking or activity that is a part of a designated project in contravention of subsection 35.1(4), or

  • (k) carries on, in contravention of subsection 35.2(1), any work, undertaking or activity prescribed under paragraph 35.2(10)(a),

  is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding two hundred thousand dollars and, for any subsequent offence, to a fine not exceeding two hundred thousand dollars or to imprisonment for a term not exceeding six months, or to both.

• (4) [Repealed, 1991, c. 1, s. 10]

• Marginal note:Matters of proof

  (5) For the purpose of any proceedings for an offence under any of subsections (1), (2) and (3),

  • (a) the death of fish takes place whether or not any act or omission resulting in the death is intentional;

  • (a.1) a harmful alteration, disruption or destruction of fish habitat takes place whether or not an act or omission resulting in the alteration, disruption or destruction is intentional;

  • (a.2) a deposit as defined in subsection 34(1) takes place whether or not any act or omission resulting in the deposit is intentional; and

  • (b) no water is water frequented by fish, as defined in subsection 34(1), where proof is made that at all times material to the proceedings the water is not, has not been and is not likely to be frequented in fact by fish.

• Marginal note:Application of fines

  (6) All fines received by the Receiver General in respect of the commission of an offence under this section are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat, or for administering that Fund.

• Marginal note:Recommendations of court

  (7) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (6).

• 41 (1) to (3) [Repealed, 1991, c. 1, s. 11]

• Marginal note:Action to enjoin not prejudiced by prosecution

  (4) Notwithstanding that a prosecution has been instituted in respect of an offence under section 40, the Attorney General of Canada may commence and maintain proceedings to enjoin anything punishable as an offence under that section.

Marginal note:Civil liability to Her Majesty

• 42 (1) Where there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under section 36 or a serious and imminent danger thereof by reason of any condition, the persons who at any material time

  • (a) own the deleterious substance or have the charge, management or control thereof, or

  • (b) are persons other than those described in paragraph (a) who cause or contribute to the causation of the deposit or danger thereof,

  are, subject to subsection (4) in the case of the persons referred to in paragraph (a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons referred to in paragraph (b), jointly and severally liable for all costs and expenses incurred by Her Majesty in right of Canada or a province, to the extent that those costs and expenses can be established to have been reasonably incurred in the circumstances, of and incidental to the taking of any measures to prevent any such deposit or condition or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result therefrom.

• Marginal note:Recovery

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

• Marginal note:Liability to fishermen

  (3) Where, as a result of a deposit that is not authorized under section 36, a deleterious substance enters water frequented by fish, the persons described in paragraphs (1)(a) and (b) are, subject to subsection (4) in the case of the persons described in paragraph (1)(a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons described in paragraph (1)(b), jointly and severally liable for all loss of income incurred by any licensed commercial fisherman, to the extent that the loss can be established to have been incurred as a result of the deposit or of a prohibition to fish resulting therefrom, and all such loss is recoverable with costs in proceedings brought or taken therefor in any court of competent jurisdiction.

• Marginal note:Defences to liability

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

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

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

• Marginal note:Exception

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

• Marginal note:Limitation

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

• Marginal note:Exception

  (7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001, constitutes a discharge of a pollutant caused by or otherwise attributable to a vessel.

• Marginal note:Other civil remedies not affected

  (8) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is authorized under this Act, is an offence under this Act or gives rise to civil liability under this Act.