Marine Transportation Security Act (S.C. 1994, c. 40)

Marginal note:Defence

29 For greater certainty, no person is liable to be convicted of an offence if the person exercised all due diligence to prevent its commission.

Marginal note:Things seized or detained

30 Where a proceeding is commenced in respect of an offence involving anything seized or detained under this Act and it is detained until the final conclusion of the proceeding, it must be returned to its lawful owner or to the person lawfully entitled to its possession, unless that person has been convicted of an offence under this Act, in which case it may be detained until any fine imposed on conviction has been paid, or it may be sold in satisfaction of the fine or any part of it.

Marginal note:Recovery of fines

• 31 (1) Where a fine imposed on a person convicted of an offence is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same effect as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person for a debt in the amount of the fine.

• Marginal note:Recovery of costs

  (2) All reasonable costs involved in registering the conviction are recoverable in the same way as if they were part of the fine.

Administrative Penalties

Interpretation

Definition of violation

32 In sections 33 to 51, violation means a contravention of a provision that is designated as a violation by the regulations.

Assurances of Compliance and Notices of Violation

Marginal note:If reasonable grounds to believe a violation

• 33 (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may

  • (a) enter into an assurance of compliance with the person that

    • (i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,

    • (ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and

    • (iii) sets out the penalty, fixed by or within the range fixed by the regulations, that the person would have been liable to pay for the violation if the assurance had not been entered into; or

  • (b) issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out

    • (i) the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation,

    • (ii) the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and

    • (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.

• Marginal note:Extension of period

  (2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person’s control.

• Marginal note:Short-form descriptions in notices of violation

  (3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Deemed violation

• 34 (1) A person who enters into an assurance of compliance under paragraph 33(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

• Marginal note:Request for review

  (2) A person who enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

35 If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice,

• (a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and

• (b) any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.

Marginal note:When assurance of compliance not complied with

• 36 (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,

  • (a) the person is liable to pay double the amount of the penalty set out in the assurance; or

  • (b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.

• Marginal note:No set-off

  (3) On the service of a notice of default, the person served has no right of set-off against any amount spent by the person under the assurance of compliance.

Marginal note:Request for review

• 37 (1) A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.

• Marginal note:Time and place for review

  (2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Certain defences not available

  (5) A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.

• Marginal note:Determination

  (6) The member may confirm the Minister’s decision or determine that the person has complied with the assurance of compliance.

Marginal note:Return of security

38 Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if

• (a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or

• (b) a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.

Marginal note:Notice of violation

• 39 (1) A person served with a notice of violation under paragraph 33(1)(b) must

  • (a) pay the amount of the penalty; or

  • (b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

• Marginal note:When review not requested

  (2) If a review of the facts of the violation is not requested, the person is deemed to have committed the violation in respect of which the notice was served.

• Marginal note:Time and place for review

  (3) On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

• Marginal note:Review procedure

  (4) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (5) The burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Determination

  (6) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 51(c), substitute his or her own determination.

Marginal note:Right of appeal

• 40 (1) The Minister or the person who requested the review of the decision may appeal a determination made under subsection 37(6) or 39(6) to the Tribunal within thirty days after the determination.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) The appeal panel of the Tribunal assigned to hear the appeal may

  • (a) in the case of a determination made under subsection 37(6), dismiss the appeal or allow the appeal and substitute its own decision; or

  • (b) in the case of a determination made under subsection 39(6), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 51(c), substitute its own decision.

Choice of Proceedings

Marginal note:How contravention may be proceeded with

41 If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.

Recovery of Debts

Marginal note:Debts due to Her Majesty

42 The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:

• (a) unless a review of the amount of a penalty is requested under subsection 39(1), the amount of the penalty, from the time the notice of violation that sets out the penalty is served;

• (b) the amount of a penalty set out in a notice of default referred to in subsection 36(1), from the time the notice under that subsection is served;

• (c) the amount of a penalty determined by a member under section 39, or decided by an appeal panel under section 40, from the time of the respective determination or decision; and

• (d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).

Marginal note:Certificate

• 43 (1) All or part of a debt referred to in section 42 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.

• Marginal note:Registration of certificate

  (2) On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant on its registration.