First Session, 45th General Assembly

53 Elizabeth II, 2004

BILL 57

AN ACT TO AMEND THE FISH INSPECTION ACT

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE TREVOR TAYLOR

Minister of Fisheries and Aquaculture

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Fish Inspection Act to implement recommendations

of the Fish Processing Policy Review Commission, the "Dunne Report".

Commissioner Dunne recommended that

the department complete a review of the Act and this Bill would also make

various housekeeping amendments stemming out of that review.

Clause 1 of the Bill would repeal and

substitute

section 2 of the Act to update the

definitions to reflect current

departmental practice, as well as to reflect the inclusion of certain recommendations

of the Commissioner contained in the Bill.

Clause 2 of the Bill is a

housekeeping amendment.

In clause 3 of the Bill, would repeal

and substitute

section 4 of the Act to create 2 types of regulations: those

made by the Lieutenant-Governor in Council and those made by the minister. Previously, only regulations made by the

Lieutenant-Governor in Council were contemplated under the Act.

Clause 4 of the Bill would ensure that

the minister has the appropriate authority to set fees and forms under the Act.

Clause 5 of the Bill would amend

section 5 of the Act to add the authority for the minister to suspend or cancel

the licence of a processor who is convicted of anti-competitive behaviour under

the Competition Act ( Canada ). It would further allow the minister to issue

special permits regarding the transportation of fish across the province and to

issue a stop work order where he or she reasonably believes a person is acting

in violation of the Act.

Clause 6 of the Bill would clarify

section 6 of the Act regarding investigators acting for the purpose of

determining compliance with the Act.

Clause 7 of the Bill is a

housekeeping amendment.

Clause 8 of the Bill would repeal and

substitute

section 9 of the Act to update the language and to allow the

department to recover the cost of the storage of fish or marine plants in the

event of a conviction under the Act.

Clause 9 of the Bill would repeal and

substitute

section 10 of the Act to update the language.

Clause 10 of the Bill would add sections

10.1 and 10.2 to the Act. The proposed

section 10.1 refers to a requirement for

a processing plan, recommended by Commissioner Dunne as a method of accountability

for processing companies. The proposed

section 10.2 would further require an annual report by a processor.

Clause 11 of the Bill would repeal section11

of the Act as this provision more appropriately belongs in regulation.

Clause 12 of the Bill establishes the

ability to pursue minor infractions of the Act through a ticketing process

established under the Provincial Offences

Act . The inclusion of a ticketing

process was recommended by the Dunne Report.

In clauses 13, 14 and 15 of the Bill,

the penalty sections of the Act have been repealed and substituted to increase

all fines. In light of the new provisions

regarding ticketing and administrative penalties, the fines for more serious

offences would be increased.

Clause 16 of the Bill would allow the

minister to impose an administrative penalty for infractions of the Act

specified in the regulations. This is

similar to administrative penalties enabled under the Environmental Protection Act .

Clause 17 of the Bill, would require the

minister to submit a report on the operation of the Act to the

Lieutenant-Governor in Council every 5 years.

Clause 18 of the Bill would bring this

Act into force on April 1, 2005 .

A BILL

AN ACT TO AMEND THE FISH INSPECTION ACT

Analysis

S.2 R&S

Definitions

S.3 R&S

Appointment

S.4 R&S

Regulations

S.4.1 R&S

Fees and forms

5. S.5 Amdt.

Issue of licences

S.6 R&S

Powers of inspectors

S.7 Amdt.

Appeal

S.9 R&S.

Seizure

9. S.10 R&S

False labelling, marketing or packaging

10. Ss.10.1& 10.2 Added

10.1 Processing plan

10.2 Annual report

S.11 Rep.

Defective cans

12. S.11.1 Added

Ticketing

13. S.12 Amdt.

Falsification of certificates

S.13 R&S

Prohibition against marketing

S.14 R&S

General penalty

S.16 Added

Administrative penalty

17. S.17 Added

Review

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cF-12

as amended

Section 2 of the Fish Inspection Act is repealed and the following substituted:

Definitions

2. In

this Act

(a) "agency agreement" means an

agreement between a licensed processor and another person which authorizes that

person to buy fish or marine plants on behalf of the licensed processor;

(b) "annual report" means the report on

processing operations for the preceding year required under

section 10.2;

(c) "carton" includes a type of

receptacle, package, wrapper or confining band used in holding, storing,

packing or marketing fish or marine plants;

(d) "container" means any means by which

fish or marine plants may be held and includes a vessel hold, boat pen, vehicle

storage area, tote pan, fish bag and an insulated fish box;

(e) "decomposed " means having an

offensive or objectionable odour, flavour, colour or textural defect associated

with spoilage and for greater certainty includes dead shellfish other than dead

shrimp and dead squid;

(f) "establishment" means a place where fish

or marine plants are handled, processed, graded or stored, or where records

relating to that handling, processing, grading or storing are kept;

(g) "fish" includes all finfish, marine

invertebrates and marine mammals, whether caught or farmed, and parts, products

or by-products of them;

(h) "fish landing station" means a site

where fish or marine plants are off loaded for the purpose of marketing;

(i) "labelling" includes marking;

(j) "marine plants" includes Irish moss,

kelp, and other marine plants, parts, products or by-products of them;

(k) "marketing" means the buying,

selling, holding in possession, offering or advertising for sale of fish or

marine plants;

(l) "minimum processing requirement"

means the minimum processing required by the minister;

(m) "minimum production requirement"

means the minimum amount of production required by the minister to be processed

by a processor;

(n) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(o) "person" includes a corporation and

the heirs, executors, administrators or other legal representatives of a

person;

(p) "processing" includes cleaning,

grading, filleting, icing, packing, canning, freezing, smoking, salting,

cooking, pickling, drying or preparing fish or marine plants for market in

another manner;

(q) "processing plan" means the annual

processing plan filed with the minister in anticipation of the processing to be

undertaken by the processor for the year following, containing the information

required by the regulations;

(r) "tainted" means being rancid or

having an abnormal odour or flavour;

(s) "unwholesome" means having in or

upon the fish or marine plants, a bacteria, toxin or other foreign substance of

a public health concern, or an aesthetically offensive substance; and

(t) "vehicle" includes a vessel, boat,

motor vehicle, aircraft or other means for the transportation of fish or marine

plants or containers or cartons of them.

Section 3 of the Act is repealed and the

following substituted:

Appointment

(1) There may be

appointed in the manner authorized by law those inspectors, officers, clerks

and other persons that are necessary for the proper administration of this Act.

(2) A person shall not obstruct, impede or refuse

to admit an inspector or other person acting in execution of this Act or the

regulations and a person shall not aid or abet a person in obstructing, impeding

or refusing to admit an inspector or other person acting in execution of this

Act.

Section 4 of the Act is repealed and the

following substituted:

Regulations

(1) The

Lieutenant-Governor in Council may make regulations

(

a) requiring and providing for the licensing of

persons engaged in the buying, handling, storing, grading, processing, transporting

or marketing of fish or marine plants;

(

b) providing for the licensing of establishments

used in or in connection with the buying, handling, processing, storing, grading,

transportation or marketing of fish or marine plants;

(

c) providing for the cancellation or suspension

of licences issued under this subsection and the method by which that cancellation

or suspension may be effected;

(

d) which relate to the regional distribution of

licences and the development and administration of the fishing industry in the

province and other matters that are not directly related to fish quality;

(

e) respecting the contravention of sections of

this Act and regulations for which an administrative penalty may be imposed and

the time and manner in which those penalties may be imposed and collected;

(

f) prescribing the procedure to be followed in an

appeal to the minister under this Act; and

(

g) exempting persons, vehicles or establishments

or a class or persons, vehicles or establishments from the application of the

provisions of this Act or the regulations.

(2) The minister may make regulations

(

a) prescribing grades and standards of fish or

marine plants for buying or marketing;

(

b) respecting the handling, processing, storing,

grading, packaging, buying, labelling, transporting, marketing, inspection and

detention of fish or marine plants;

(

c) regarding the quality and specifications of

containers and cartons, and the labelling and inspection of containers and

cartons;

(

d) requiring and providing for the standards and

operating requirements of vehicles and the transportation of fish or marine

plants;

(

e) prescribing the requirements for the construction,

equipment and operating standards of establishments, and of vehicles or

equipment used in an establishment associated with the buying or processing of fish

or marine plants;

(

f) prohibiting the marketing and labelling of fish

or marine plants or containers or cartons of them under grade names or

standards unless all the requirements of this Act and the regulations have been

complied with, and prohibiting the marketing and labelling of fish or marine

plants or containers or cartons of them under a name calculated to mislead or

deceive;

(

g) prescribing the manner in which samples of fish

or marine plants may be taken;

(

h) prohibiting or restricting the marketing of fish

or marine plants or cartons or containers of them unless all the requirements

of this Act and the regulations have been complied with;

(

i) prescribing certificates and other documents

that may be issued in respect of an inspection made under this Act or the regulations;

(

j) respecting fish landing stations in the province;

(

k) providing for the disposition of fish or

marine plants, so as to prevent them from being marketed for human consumption,

where the fish or marine plants are tainted, decomposed or unwholesome and

prescribing the methods, supervision and direction of the time within which the

disposal is to be effected and by whom and at whose expense, including prescribing

the time for disposal following inspection;

(

l) requiring processors to retain certified quality

control personnel, and the qualifications which shall be required of those quality

control personnel;

(

m) requiring a processor to disclose the shareholders

of the processing operation and those with a majority interest in a processing

operation;

(

n) prescribing criteria to determine which

licences are inactive licences;

(

o) prescribing minimum production requirements;

(

p) prescribing minimum processing requirements;

(

q) prescribing the requirements for an annual

report required to be filed under

section 10.2;

(

r) with respect to the licensing of grading

companies;

(

s) prescribing operating standards relating to the

quality of fish or marine plants;

(

t) prescribing the circumstances in which agency

agreements may be required or approved;

(

u) regarding special permits for the transfer of fish

or marine plants, and the circumstances under which those permits may be given;

and

(

v) generally, to give effect to the purpose of

this Act.

(3) The Lieutenant-Governor in Council and the

minister may in addition to or instead of regulations made under subsections

(1) and (2) adopt by reference and constitute as regulations the whole or part

or provisions of a code adopted or standards fixed, with or without modification,

and including amendments to the code or standard of an organization acceptable

to the Lieutenant-Governor in Council or the minister.

(4) A certificate of the minister that a document

is a copy of a code or standard referred to in subsection (3) or an extract

from, a modification of, or an amendment to, a code or standard is without further

proof presumptive evidence of the content of that code, standard, extract or

amendment.

Section 4.1 of the Act is repealed and the

following substituted:

Fees and forms

4.1 The

minister may prescribe fees and establish forms for the purpose and

administration of this Act.

Section 5 of the Act is amended by adding

immediately after subsection (2) the following:

(3) Where a processor has been convicted of

engaging in an anti-competitive act as defined in

section 78 of the Competition Act ( Canada ), the minister may suspend or cancel that processor's licence.

(4) The minister may, in the circumstances

prescribed in the regulations, issue a special permit for the transportation of

fish or marine plants.

(5) Where the minister has reasonable grounds to

believe that a person has violated a provision of this Act, the regulations or

a condition of licence and the person has not, within a reasonable time, complied

with a request of the minister to cease the violating activity, the minister

may issue a stop work order and that activity shall cease.

Section 6 of the Act is repealed and the

following is substituted:

Powers of inspectors

(1) Where

it is reasonably necessary for the purpose of ensuring compliance with this Act

and the regulations, an inspector, officer or other person designated by the

minister may, at a reasonable time and without a warrant

(

a) enter an establishment or a vehicle used for

the carriage or storage of fish or marine plants and may open a container or carton

which he or she believes contains fish or marine plants;

(

b) require to be produced for inspection or for

the purpose of obtaining copies or extracts from books, shipping bills, bills

of lading or other documents or papers relating to the quality, landing,

buying, processing, transportation or marketing of fish or marine plants; and

(

c) take, without charge, the minimum sample of fish

or marine plants required for inspection.

(2) An inspector, officer, or other person acting

under subsection (1) may detain a vehicle for the purpose of performing the

inspection or obtaining the sample referred to in that subsection.

(3) A sample taken under subsection (1) shall be

disposed of as the minister directs.

Section 7 of the Act is amended by deleting the

word "marking" and by substituting the word "labelling".

Section 9 of the Act is repealed and the

following substituted:

Seizure

(1) Where an inspector believes on reasonable

grounds that a person has contravened this Act or the regulations, the

inspector may, with a warrant issued under subsection (2), seize all fish or

marine plants or containers or cartons of them by means of or in relation to

which he or she reasonably believes the offence was committed.

(2) A provincial court judge or justice of the

peace who is satisfied by an information upon oath or affirmation that there

are reasonable and probable grounds for believing that there is on the premises

anything that there are reasonable grounds to believe will give evidence with

respect to an offence under this Act or the regulations may issue a warrant

authorizing an inspector named in the warrant to enter and seize all fish or

marine plants and containers or cartons of them that are considered necessary,

subject to the conditions that may be specified in the warrant.

(3) Fish or marine plants or containers or cartons

of them seized under subsection (1) may be held and kept for a period of 180

days following the day of seizure unless during that period proceedings under

this Act in respect of those fish or marine plants or containers or cartons of

them are undertaken, in which case the fish or marine plants or containers or

cartons of them may be further held and kept until the proceedings are finally

concluded.

(4) Where, in the opinion of the inspector or

other person having custody of the fish or marine plants or cartons or

containers of them seized under this

section that the seized materials will

become tainted, decomposed or unwholesome during the period referred to in

subsection (3), the inspector or other person shall inform the minister and the

minister may direct that the seized materials be sold in a manner that he or

she may determine.

(5) The proceeds of a sale referred to in

subsection (4) shall be paid into the Consolidated Revenue Fund.

(6) Where fish or marine plants or containers or

cartons of them are seized under this section, a person having an interest in

the seized materials may apply to a judge of the Trial Division for the return

of those materials, and the judge may, where

(

a) he or she is satisfied that the fish or marine

plants or containers or cartons of them were not seized because they were decomposed,

tainted or unwholesome;

(

b) he or she is satisfied that the retention of

the fish or marine plants or containers or cartons of them is not necessary as

evidence of the commission of an offence;

(

c) he or she is satisfied as to the value of the fish

or marine plants or containers or cartons of them seized; and

(

d) the applicant posts a bond or other form of

security in a manner and amount satisfactory to the judge

order the return of the fish or marine

plants or containers or cartons of them.

(7) Where no proceedings are taken following a

seizure under this

section or where proceedings are taken and the person

charged is acquitted of the charge made against him or her

(

a) the inspector or other person having the

custody of the fish or marine plants or containers or cartons of them seized under

subsection (1) shall return them to the person from whom they were seized; and

(

b) where the fish or marine plants or containers

or cartons of them is sold under subsection (4), the minister shall pay the

proceeds of the sale to the person from whom they were seized under subsection

(1).

(8) For the purpose of preserving the identity of fish

or marine plants or containers or cartons of them seized under subsection (1),

an inspector may place upon the fish or marine plants or container or carton a

numbered tag in the form that the minister may prescribe.

(9) A person shall not remove or alter a tag

placed upon fish or marine plants or containers or cartons of them under

subsection (8) and shall not remove fish or marine plants or containers or

cartons of them held and kept under this section.

(10) Where a person is convicted of an offence

under this Act or the regulations or of a violation of a condition of licence

issued under this Act or the regulations, the judge before whom he or she is convicted

may, in addition to a penalty imposed under this Act

(

a) order that the

(

i) fish or marine plants or containers or cartons

of them by means of or in relation to which the offence was committed,

(ii) costs of storage of the fish or marine plants or

containers or cartons of them during the disposition of the case, and

(iii) proceeds of a sale under subsection (4),

be forfeited to the Crown to be disposed of

as the minister directs or be paid into the Consolidated Revenue Fund,

whichever is appropriate; or

(

b) where a bond or other security has been posted

under subsection (6), call upon the bond or other security and order the person

posting it to pay immediately the amount of the bond or other security into the

Consolidated Revenue Fund as a debt due the Crown.

Section 10 of the Act is repealed and the

following substituted:

False labelling,

marketing or packaging

10. A person shall not mark, label or package fish

or marine plants or containers or cartons of them in a manner that is false, misleading

or deceptive.

10. The Act is amended by adding immediately after

section 10 the following:

Processing plan

10.1

(1) A

processor shall submit a processing plan to the minister for his or her

approval which

(

a) contains the information with respect to the

processing which the processor intends to undertake in that year; and

(

b) is in the form required by the minister and

contains the information required by the regulations.

(2) Where, after a processing plan has been

approved, a processor proposes to make a significant alteration or addition to

the processing he or she intends to undertake, that processor shall file with

the minister an amended processing plan which meets the requirements of

subsection (1) and the minister may accept it with or without changes.

(3) A processor shall process in substantial

conformity with the processing plan approved under this section.

Annual report

10.2

(1) A

processor shall, once in a calendar year, file with the minister an annual

report on his or her processing operations for the preceding year.

(2) The annual report on processing required under

subsection (1) shall be in the form required by the minister and contain the

information prescribed by the regulations.

Section 11 of the Act is repealed.

12. The Act is amended by adding immediately after

section 11 the following:

Ticketing

11.1 An

inspector may commence proceedings, which may be in the form of a ticket issued

in accordance with the Provincial Offences Act and regulations in

respect of a violation of this Act or the regulations.

13. (1)Subsection 12(1) of the Act is amended by

adding immediately after the word "containers" the words "or

cartons".

(2) Subsection 12(2) of the Act is repealed and

the following substituted:

(2) A person who violates subsection (1) is guilty

of an offence and is liable on

summary conviction

(

a) for a first offence, to a fine of not less

than $5,000 and not more than $20,000 or to imprisonment for a term of not less

than one month or more than 6 months, or to both a fine and imprisonment;

(

b) for a second offence, to a fine of not less

than $20,000 and not more than $50,000 or to imprisonment for a term of not

less than 2 months or more than 6 months, or to both a fine and imprisonment;

and

(

c) for a third offence, to a fine of not less

than $50,000 and not more than $100,000 or to imprisonment for a term of not

less than 3 months or more than 6 months, or to both a fine and imprisonment.

Section 13 of the Act is repealed and the

following substituted:

Prohibition

against marketing

(1) A person shall not market fish or

marine plants intended for human consumption if the fish or marine plants are

tainted, decomposed or unwholesome.

(2) A person who violates subsection (1) is guilty

of an offence and is liable on

summary conviction

(

a) for a first offence, to a fine of not less

than $5,000 and not more than $20,000 or to imprisonment for a term of not less

than one month or more than 6 months, or to both a fine and imprisonment;

(

b) for a second offence, to a fine of not less

than $20,000 and not more than $50,000 or to imprisonment for a term of not

less than 2 months or more than 6 months, or to both a fine and imprisonment;

and

(

c) for a third offence, to a fine of not less

than $50,000 and not more than $100,000 or to imprisonment for a term of not

less than 3 months or more than 6 months, or to both a fine and imprisonment.

Section 14 of the Act is repealed and the

following substituted:

General penalty

14. A

person who violates a provision of this Act or the regulations or a condition

attached to a licence issued under this Act or the regulations for which no

penalty is provided elsewhere in this Act is guilty of an offence and is liable

on

summary conviction

(

a) for a first offence, to a fine of not less

than $5000 and not more than $20,000 or to imprisonment for a term of not less

than one month or more than 6 months, or to both a fine and imprisonment;

(

b) for a second offence, to a fine of not less

than $20,000 and not more than $50,000 or to imprisonment for a term of not

less than 2 months or more than 6 months, or to both a fine and imprisonment;

and

(

c) for a third offence, to a fine of not less

than $50,000 and not more than $100,000 or to imprisonment for a term of not

less than 3 months or more than 6 months, or to both a fine and imprisonment.

16. The Act is amended by adding immediately after

section 15 the following:

Administrative

penalty

(1) Where the minister is of the opinion that a person has committed, as specified

by regulation, a contravention of this Act for which an administrative penalty

applies, the minister or a person authorized by the minister may, in writing,

notify that person that he or she is to pay to the government of the province

an administrative penalty in the amount set out in the notice for each

contravention.

(2) A person who pays an administrative penalty

with respect to a contravention may not be ticketed under the Provincial Offences Act and regulations

or charged with an offence under this Act with respect to that contravention.

(3) Where a person fails to pay an administrative

penalty in accordance with a notification under subsection (1), the government

of the province may recover the amount owing in respect of the penalty as a

debt owed to the Crown.

(4) For the purpose of this section, an

administrative penalty is a monetary penalty imposed in accordance with the

regulations for a contravention of this Act.

17. The Act is amended by adding immediately after

section 16 the following:

Review

17. The

minister shall, every 5 years, perform a review of this Act and the regulations

made under it, the principles upon which it is based, and consider the areas in

which it may be improved and report his or her findings to the

Lieutenant-Governor in Council.

Commencement

18. This Act shall come into force on April 1, 2005 .

Earl G. Tucker, Queen's Printer