Third

Session, 45th General Assembly

Elizabeth II, 2006

BILL 57

AN ACT TO AMEND THE

FISH INSPECTION ACT

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

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

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

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

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

HONOURABLE

THOMAS G. RIDEOUT

Minister of Fisheries and Aquaculture

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

Clause 1 of the Bill would amend

section 2 of the Fish Inspection Act

by repealing the

definitions of "annual report" and "processing

plan" and by adding

definitions of "data" and

"document".

Clause 2 of the Bill would amend

section 3 of the Act to create 2 new offences: threatening or harassing an inspector or other

person engaged in the execution of the Act and regulations and failing to produce

items for inspection or seizure and detention or removal.

Clause 3 of the Bill would amend

section 4 of the Act to expand the regulatory authority of the

Lieutenant-Governor in Council to include the establishment of penalties for a

breach of

section 3 of the Act and to provide for regulations in respect of the

detention and return or other disposition of documents and data seized under

the authority of a warrant or produced under the authority of a production

order. This clause would also repeal the

minister's regulatory authority in respect of processing plans as a consequence

of the repeal of

section 10.1 of the Act.

Clause 4 of the Bill would repeal and

replace

section 9 of the Act. The replacement

section would set out the process for obtaining a search warrant, describe the

powers of an inspector in executing a search warrant and stipulate the

circumstances in which a search and seizure could be conducted without a warrant.

This

section would expand the current

search and seizure powers of an inspector by allowing a search to be conducted

in relation to any place and by permitting the search and seizure of documents

or data in addition to the seizure of fish and marine plants.

This

section would also expand the

scope of the prohibition against removing or altering tags or removing fish,

marine plants, containers or cartons seized during a search to include a

prohibition against moving, tampering or interfering with seized fish, marine

plants, containers, or cartons during the period of detention.

This clause of the Bill would also add

2 new sections to the Act.

Section 9.1 would

reproduce the existing provisions of the Act respecting the detention and sale

of fish, marine plants and containers and cartons of fish or marine plants.

Section 9.2 would create a new production

order. The production order would be an

order issued by a Provincial

Court judge and directed

at persons other than persons under investigation for a contravention of the

Act or the regulations. The order would

direct a person to produce and deliver to an inspector documents or data

related to an alleged contravention of the Act or regulations. The disposition of documents and data produced

under such an order would be addressed by regulations. This provision expands upon the existing

powers of an inspector under

section 6 of the Act.

Clause 5 of the Bill would repeal sections

10.1 and 10.2 of the Act requiring processors to submit processing plans and

annual reports to the minister.

Clause 6 of the Bill would add a new

section 13.1 to the Act clarifying that every violation of the Act,

to a separate transaction constitutes a separate offence, and providing that

where an offence is committed or continued for more than one day, each day on

which the offence is committed or continued is considered to be a separate offence.

Clause 7 of the Bill would add a new

section 16.1 to the Act providing that the limitation period for prosecutions

for offences under the Act or the regulations would be 3 years from the date on

which the deputy minister becomes aware of the alleged offence.

A BILL

AN ACT TO AMEND THE FISH INSPECTION ACT

Analysis

S.2 Amdt.

Definitions

S.3 Amdt.

Appointment

S.4 Amdt.

Regulations

S.9 R&S

9. Search and seizure

with warrant

9.1 Disposition of things seized

9.2 Production orders

5. Ss.10.1 and 10.2 Rep.

10.1 Processing Plan

10.2 Annual report

S.13.1 Added

Offence

S.16.1 Added

Limitation period

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cF-12

as amended

(1) Paragraph 2(

b) of the Fish Inspection Act is repealed.

(2) Section 2 of the Act is amended by adding

immediately after paragraph (

d) the following:

(d.1) "data" means representations of

information or of concepts that are being prepared or have been prepared in a

form suitable for analysis using a variety of software applications;

(3) Section 2 of the Act is amended by adding

immediately after paragraph (

e) the following:

(e.1) "document" means a medium on which

is recorded or marked anything that is capable of being read or understood by a

person or a computer system or other device and includes a written record, book,

account, voucher, manifest, report, financial statement, bank statement,

shipping bill, bill of lading, label, drawing, plan, picture and diagram;

(4) Paragraph 2 (

q) of the Act is repealed.

2. Subsection 3(2) of the Act is repealed and the

following substituted:

(2) A person shall not

(

a) hinder, obstruct, interfere with, threaten or harass

an inspector or other person engaged in the execution of this Act or the

regulations;

(

b) refuse to admit an inspector or other person

engaged in the execution of this Act or the regulations;

(

c) provide an inspector or other person engaged

in the execution of this Act or the regulations with false information or

refuse to provide him or her with information as required by this Act or the

regulations;

(

d) fail or refuse to produce for inspection or

seizure and detention or removal anything that by

section 6, 9 or 9.2 an inspector

or other person may inspect or seize and detain or remove under the authority

of this Act or regulations; or

(

e) aid or abet another person in

an act or

omission described in paragraphs (

a) to (d).

(3) A person who contravenes subsection (2) is

guilty of an offence and is liable on

summary conviction to the penalty prescribed

by the regulations or, where no penalty has been prescribed by regulation, to a

penalty under

section 14.

3. (1) Subsection 4(1) of the Act is amended

by adding immediately after paragraph (e.1) the following:

(e.2) prescribing penalties in relation to offences

under subsection 3(2);

(2) Subsection 4(1) of the Act is amended

(

a) by striking out the word "and" at

the end of paragraph (f);

(

b) by striking out the period at the end of

paragraph (

g) and substituting a semicolon and the word "and"; and

(

c) by adding immediately after paragraph (

g) the

following:

(

h) respecting the detention and return or other

disposition of documents or data seized under a warrant under

section 9 or produced

under an order made under

section 9.2.

(3) Paragraph 4(2)(

q) of the Act is repealed.

Section 9 of the Act is repealed and the

following substituted:

Search and

seizure with warrant

(1) For

purposes of this section, a reference to "place" includes an

establishment, commercial or private premises, a container and a vehicle.

(2) A Provincial Court judge who is satisfied by

information in writing and upon oath or affirmation that there are reasonable

grounds to believe that there is on, at or in a place anything that will give

evidence with respect to a contravention of this Act or the regulations, may

issue a warrant authorizing an inspector named in the warrant to enter the

place and search for and seize anything that will provide evidence with respect

to a contravention of this Act or the regulations, subject to the conditions

that may be specified in the warrant.

(3) An inspector acting under the authority of a

warrant issued under subsection (2) may enter a place specified in the warrant

and

(

a) search and make those inquiries that the inspector

considers necessary;

(

b) seize all fish or marine plants, or containers

or cartons of them, at, in or on the place;

(

c) inspect documents and data and make copies of documents

that are considered necessary;

(

d) seize and remove data and documents for the

purpose of making copies, and, where documents are seized and removed for the

purpose of making copies, those documents shall be held and returned or

otherwise disposed of in accordance with the regulations.

(4) Fish or marine plants, or containers or

cartons of them, seized under subsection (3) 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.

(5) For the purpose of preserving the identity of

fish or marine plants, or containers or cartons of them, seized under

subsection (3), an inspector may place upon the fish or marine plants, or

containers or cartons of them, a numbered tag in the form that the minister may

prescribe.

(6) A person shall not remove or alter or cause to

be removed or altered a tag placed upon fish or marine plants, or containers or

cartons of them, under subsection (5) and shall not move, remove, tamper or

interfere with fish or marine plants, or containers or cartons of them, held

and kept under this section.

(7) Every copy of a document or data that is

seized and removed under paragraph (3)(

d) for the purpose of making copies, on

proof by affidavit that it is a true copy, is admissible in evidence in

proceedings under this Act and has the same probative force as the original

would have if it had been proved in the ordinary way.

(8) Notwithstanding subsection (3), an inspector

may exercise the powers of search and seizure referred to in that subsection

without a warrant where the conditions for obtaining the warrant exist but by

reason of exigent circumstances it would not be practical to obtain the

warrant.

(9) For the purpose of subsection (8), exigent

circumstances include circumstances in which the delay necessary to obtain the

warrant would result in danger to human life or safety or the loss or destruction

of evidence.

(10) An owner, employer, operator or person

actually or apparently in charge of a place and a person found on, in or at the

place shall provide an inspector acting under subsection (2) or (8) reasonable

help to enable the inspector to carry out his or her duties and functions under

this

section and shall provide the information that the inspector may reasonably

require.

(11) Nothing in this

section replaces, supersedes,

diminishes or otherwise affects the powers or the exercise of the powers of an

inspector under

section 6.

Disposition of things

seized

9.1

(1) Where,

in the opinion of the inspector or other person having custody of the fish or

marine plants, or containers or cartons of them, seized under

section 9, the

seized materials will become tainted, decomposed or unwholesome during the

period referred to in subsection 9(4), 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.

(2) The proceeds of a sale referred to in

subsection (1) shall be paid into the Consolidated Revenue Fund.

(3) 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.

(4) Where no proceedings are taken following a

seizure under

section 9 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 9(3) 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, are sold under subsection (1), the minister shall pay the

proceeds of the sale to the person from whom they were seized under subsection 9(3).

(5) 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 (1),

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 (3), 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.

Production orders

9.2

(1) A Provincial Court judge may order a person, other than a person under investigation

for an offence referred to in paragraph 3(a),

(

a) to produce documents or copies of documents,

certified by affidavit to be true copies, or to produce data; or

(

b) to prepare a document based on documents or

data already in existence and to produce it.

(2) An order referred to in subsection (1) shall

require the document or data to be produced within the time, at the place and

in the form specified and to be given to an inspector, officer or other person

designated by the minister.

(3) A Provincial Court judge may make an order referred to in subsection (1) where he or

she is satisfied on the basis of an application made in writing on oath or

affirmation and without notice that there are reasonable grounds to believe

that

(

a) a person has contravened or is contravening this

Act or the regulations or is suspected to have contravened this Act or the

regulations;

(

b) the document or data will provide evidence

respecting a contravention or suspected contravention of this Act or the regulations;

and

(

c) the person who is subject to the order has

possession or control of the document or data.

(4) An order referred to in subsection (1) may

(5) A copy of a document produced under this

section, on proof by affidavit that it is a true copy, is admissible in evidence

in proceedings under this Act and has the same probative force as the original

document would have if it had been proved in the ordinary way.

(6) Documents or data produced under an order made

under subsection (1) shall be held and returned or otherwise disposed of in accordance

with the regulations.

(7) Copies of documents produced under this

section are not required to be returned to the person who provided them.

5. Sections 10.1 and 10.2 of the Act are repealed.

6. The Act is amended by adding immediately after

section 13 the following:

Offence

13.1

(1) A

person who

(

a) contravenes this Act or the regulations or an

order made under this Act or the regulations;

(

b) fails to comply with or otherwise contravenes

regulations; or

(

c) makes a false statement in a form or return

completed, made or provided under this Act or the regulations,

which is not declared to be an offence by

another

section is guilty of an offence, and every contravention, failure to

comply or false statement relating to a separate transaction constitutes a

separate offence.

(2) Where an offence under this Act or the

regulations is committed on more than one day or continued for more than one

day, it shall be considered to be a separate offence for each day or part of

the day on which it is committed or continued and, where an information relating

to an alleged offence under this Act or the regulations sets out that the

alleged offence was committed or continued on several days or for a period of

days, it shall be considered to be a separate information alleging a separate

offence for each day or part of the day in the period.

7. The Act is amended by adding immediately after

section 16 the following:

Limitation period

16.1 A

prosecution under this Act or the regulations shall be commenced within 3 years

of the date upon which the deputy minister of the department becomes aware of

the alleged offence.

Earl G. Tucker, Queen's Printer