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Fisheries Act, Part Five
VACANT PUBLIC PROPERTY
Vacant public property
60. (1) Every subject of Her Majesty may, for the purpose of landing, salting, curing and drying fish, use, and cut wood on, vacant public property that by law is common and accessory to public rights of fishery and navigation.
Prohibition
(2) No person shall occupy the same station on vacant public property described in subsection (1) unless it has been abandoned by the first occupant for twelve consecutive months.
Payment may be required
(3) At the expiration of the twelve months referred to in subsection (2), any new occupier shall pay the value of the flakes and stages and other property thereon, of which he takes possession, or the buildings and improvements may be removed by the original owner.
Leased property
(4) No property leased or licensed shall be deemed vacant.
R.S., c. F-14, s. 47.
INFORMATION RETURNS
Persons who may be required to provide information
61. (1) The following persons may be required under this Act to provide information or to keep records, books of account or other documents:
(a) any person who engages in fishing;
(b) any person who purchases fish for the purpose of resale;
(c) any owner, operator or manager of an enterprise that catches, cultures, processes or transports fish; and
(d) any agent or employee of a person referred to in paragraphs (a) to (c).
Information that may be required
(2) A person referred to in subsection (1) may be required to provide information or to keep records or other documents relating to any of the following matters:
(a) the number, sex, size, weight, species, product form, value or other particulars of any fish caught, cultured, processed, transported, sold or purchased;
(b) the time and place at which any fish was caught or landed and the person, enterprise or vessel by which the fish was caught or landed;
(c) the time and place at which any fish was purchased and the person, enterprise or vessel from which the fish was purchased;
(d) the vessels, gear and methods used and the number of persons employed for the purpose of catching fish;
(e) the buildings, equipment, products and methods used and the number of persons employed for the purpose of culturing or processing fish; and
(f) any other matter relating to the proper management and control of fisheries or the conservation and protection of fish.
Duty to keep books
(3) A person referred to in subsection (1) shall keep any records, books of account or other documents that may be required by the regulations or by the terms and conditions of any lease or licence issued to the person under this Act and the records, books of account or other documents shall be kept in the manner and form and for the period prescribed by the regulations, lease or licence.
Duty to provide information
(4) A person referred to in subsection (1) shall, on the request of any fishery officer or fishery guardian, provide the officer or guardian, or any authority designated by the officer or guardian, with any information relating to a matter mentioned in subsection (2) that the officer or guardian may request.
Idem
(5) A person referred to in subsection (1) shall, in accordance with the regulations and the terms and conditions of any lease or licence issued to the person under this Act, provide a fishery officer, a fishery guardian or any authority designated in the regulations, lease or licence with any information relating to a matter mentioned in subsection (2) that the regulations, lease or licence requires.
R.S., 1985, c. F-14, s. 61; 1991, c. 1, s. 18.
OBSTRUCTION AND FALSE INFORMATION
Obstruction
62. No person shall obstruct or hinder a fishery officer, a fishery guardian or an inspector who is carrying out duties or functions under this Act.
R.S., 1985, c. F-14, s. 62; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 1, s. 18.
False statements to fishery officer, etc.
63. (1) No person shall make a false or misleading statement, whether orally or in writing, to an inspector, a fishery officer or a fishery guardian or any authority designated by a fishery officer or a fishery guardian who is carrying out duties or functions under this Act.
False statements in licence application
(2) No person shall make a false or misleading statement, whether orally or in writing, in an application for a lease or licence under this Act.
False records
(3) No person shall produce for examination or copying by an inspector, a fishery officer or a fishery guardian or any authority designated by a fishery officer or a fishery guardian any records, books of account or other documents that contain false or misleading information.
R.S., 1985, c. F-14, s. 63; 1991, c. 1, s. 18.
64. and 65. [Repealed, 1991, c. 1, s. 18]
CONSEQUENCES OF OBSTRUCTION
Failure to provide fish-way, etc.
66. Every owner or occupier of an obstruction across or in any stream who refuses or neglects to provide and maintain a fish-way or canal in accordance with section 20, to install and maintain fish stops or diverters in accordance with subsection 21(4) or to provide for a sufficient flow of water and the free passage of fish in accordance with section 22 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.
R.S., 1985, c. F-14, s. 66; 1991, c. 1, s. 19.
Payment respecting certain obstructions
67. (1) Where the Minister determines that the provision, which he deems necessary for the public interest, of an efficient fish-way or canal around any obstruction is not feasible or that the spawning areas above the obstruction are destroyed by reason of the obstruction, the owner or occupier of the obstruction shall from time to time pay to the Receiver General such lump sum or annual sum of money as may be assessed against the owner or occupier by the Minister for the purpose of constructing, operating and maintaining such complete hatchery establishment as will, in the opinion of the Minister, meet the requirements for maintaining the annual return of migratory fish.
Assessment recoverable on suit in Federal Court
(2) The lump sum or annual sum referred to in subsection (1) shall be payable at such time or times as the Minister may direct and may be sued for and recovered with full costs of suit in the Federal Court.
R.S., c. F-14, s. 53; R.S., c. 10(2nd Supp.), s. 64.
68. [Repealed, 1991, c. 1, s. 20]
Failure to provide fish guard, etc.
69. Every owner or occupier of a water intake, ditch, channel or canal referred to in subsection 30(1) who refuses or neglects to provide and maintain a fish guard, screen, covering or netting in accordance with subsections 30(1) to (3), permits the removal of a fish guard, screen, covering or netting in contravention of subsection 30(3) or refuses or neglects to close a sluice or gate in accordance with subsection 30(4) 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.
R.S., 1985, c. F-14, s. 69; 1991, c. 1, s. 21.
DISPOSITION OF SEIZED THINGS
Custody of seized things
70. (1) A fishery officer or fishery guardian who seizes any fish or other thing under this Act may retain custody of it or deliver it into the custody of any person the officer or guardian considers appropriate.
Request by officer or guardian
(2) A person who is given custody of any fish or other thing under subsection (1) shall, on the request of a fishery officer or fishery guardian at any reasonable time, make the fish or thing available for inspection by or deliver it into the custody of the officer or guardian.
Perishables
(3) A fishery officer or fishery guardian who has custody of any fish or other perishable thing seized under this Act may dispose of it in any manner the officer or guardian considers appropriate and any proceeds realized from its disposition shall be paid to the Receiver General.
R.S., 1985, c. F-14, s. 70; 1991, c. 1, s. 21.
Detention of seized things
71. (1) Subject to this section, any fish or other thing seized under this Act, or any proceeds realized from its disposition, may be detained until the fish or thing or proceeds are forfeited or proceedings relating to the fish or thing are finally concluded.
Return on deposit of security
(2) Subject to subsection 72(4), a court may order any fish or other thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount that is satisfactory to the Minister.
Return where proceedings not instituted
(3) Subject to subsection 72(4), where proceedings are not instituted in relation to any fish or other thing seized under this Act, the fish or thing or any proceeds realized from its disposition shall be returned to the person from whom it was seized
(a) on the Minister's decision not to institute proceedings; or
(b) on the expiration of ninety days after the day of the seizure or any further period that may be specified in an order made under subsection (4).
Order to extend detention
(4) Where a court is satisfied, on the application of the Minister within ninety days after the day on which any fish or other thing is seized, that detention of the fish or thing for a period greater than ninety days is justified in the circumstances, the court may, by order, permit the fish or thing to be detained for any further period that may be specified in the order.
R.S., 1985, c. F-14, s. 71; 1991, c. 1, s. 21.
Recovery of costs
71.1 (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order the person to pay the Minister an amount of money as compensation for any costs incurred in the seizure, storage or disposition of any fish or other thing seized under this Act by means of or in relation to which the offence was committed.
Debt due to Her Majesty
(2) Where a court orders a person to pay an amount of money as compensation under subsection (1), the amount and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.
1991, c. 1, s. 21.
Forfeiture of things
72. (1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that any thing seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from its disposition, be forfeited to Her Majesty.
Forfeiture of fish
(2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall, in addition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.
Idem
(3) Where a person is charged with an offence under this Act that relates to fish seized pursuant to paragraph 51(a) and the person is acquitted but it is proved that the fish was caught in contravention of this Act or the regulations, the court may order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.
Forfeiture where ownership not ascertainable
(4) Where the ownership of any fish or other thing seized under this Act cannot be ascertained at the time of the seizure, the fish or thing is thereupon forfeited to Her Majesty.
R.S., 1985, c. F-14, s. 72; R.S., 1985, c. 31 (1st Supp.), s. 96; 1991, c. 1, s. 21.
Disposal of forfeited things
73. (1) Subject to sections 75 to 77, any fish or other thing forfeited to Her Majesty under subsection 72(1), (2) or (3) shall be disposed of after the final conclusion of the proceedings relating to the fish or thing, as the Minister directs.
Disposal where ownership not ascertained
(2) Subject to sections 75 to 77, any fish or other thing forfeited to Her Majesty under subsection 72(4) shall be disposed of after the expiration of thirty days from the day of forfeiture, as the Minister directs.
Exception
(3) Notwithstanding subsection (2), where any fishing gear or equipment is forfeited under subsection 72(4), it may be disposed of immediately on its forfeiture, as the Minister directs.
R.S., 1985, c. F-14, s. 73; 1991, c. 1, s. 21.
Return of things not forfeited
73.1 (1) Subject to subsection (2), any fish or other thing seized under this Act, or any proceeds realized from its disposition, that are not forfeited to Her Majesty under section 72 shall, on the final conclusion of the proceedings relating to the fish or thing, be delivered to the person from whom the fish or thing was seized.
Exception
(2) Subject to subsection 72(4), where a person is convicted of an offence relating to any fish or other thing seized under this Act and the court imposes a fine but does not order forfeiture,
(a) the fish or thing may be detained until the fine is paid;
(b) it may be sold under execution in satisfaction of the fine; or
(c) any proceeds realized from its disposition may be applied in payment of the fine.
1991, c. 1, s. 21.
Release of seized fish
73.2 Notwithstanding anything in sections 70 to 73.1, a fishery officer or fishery guardian who seizes any fish under this Act may, at the time of the seizure, return to the water any fish that the officer or guardian believes to be alive.
1991, c. 1, s. 21.
Definitions
74. In sections 75 and 76,
"court of appeal" «cour d'appel»
"court of appeal" means, in the province in which an order under section 75 is made, the court of appeal for that province as defined in section 2 of the Criminal Code;
"judge" «juge»
"judge" means
(a) in the Province of Quebec, a judge of the Superior Court for the district in which the thing in respect of which an application for an order under section 75 is made was seized,
(a.1) in the Province of Ontario, a judge of the Superior Court of Justice,
(b) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen's Bench,
(c) in the Province of Prince Edward Island, a judge of the Trial Division of the Supreme Court,
(c.1) [Repealed, 1992, c. 51, s. 50]
(d) in the Provinces of Nova Scotia, British Columbia and Newfoundland, the Yukon Territory and the Northwest Territories, a judge of the Supreme Court, and
(e) in Nunavut, a judge of the Nunavut Court of Justice.
R.S., 1985, c. F-14, s. 74; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990, c. 16, s. 10, c. 17, s. 20; 1992, c. 51, s. 50; 1998, c. 30, s. 14; 1999, c. 3, s. 65.
Application by person claiming interest
75. (1) Where any thing other than fish is forfeited to Her Majesty under subsection 72(1) or (4), any person who claims an interest in the thing as owner, mortgagee, lienholder or holder of any like interest, other than a person convicted of the offence that resulted in the forfeiture or a person from whom the thing was seized, may, within thirty days after the forfeiture, apply in writing to a judge for an order pursuant to subsection (4).
Date of hearing
(2) The judge to whom an application is made pursuant to subsection (1) shall fix a day not less than thirty days after the date of filing of the application for the hearing thereof.
Notice
(3) The applicant shall serve a notice of the application and of the hearing on the Minister at least fifteen days before the day fixed for the hearing.
Order by judge
(4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,
(a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and
(b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lienholder, that he exercised such care with respect to the mortgagor or the liengiver,
the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.
R.S., 1985, c. F-14, s. 75; 1991, c. 1, s. 22.
Appeal
76. (1) The applicant or the Minister may appeal to the court of appeal from an order made under subsection 75(4) and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the court of appeal from orders or judgments of a judge.
Application to Minister
(2) The Minister shall, on application made to him by any person who has obtained a final order pursuant to this section or section 75,
(a) except in the case of any thing disposed of under subsection 70(3), direct that the thing to which the interest of the applicant relates be returned to the applicant; or
(b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to him.
R.S., 1985, c. F-14, s. 76; 1991, c. 1, s. 23.
Exception
77. Sections 74 to 76 do not apply to
(a) any fishing gear or equipment that has been disposed of pursuant to subsection 73(3); or
(b) any fish that have been returned to the water pursuant to section 73.2.
R.S., 1985, c. F-14, s. 77; 1991, c. 1, s. 24.