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Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act - November 2001

Jurisdiction and Responsibilities

Jurisdiction

Under section 91 of the Constitution Act, 1867, the federal government has exclusive jurisdiction over the conservation and protection of Canada's sea coast and inland fisheries. The Fisheries Act, first passed by Parliament in 1868, is the federal statute promulgated pursuant to this constitutional authority.

The Department of Fisheries and Oceans has primary, and ultimate, responsibility for administration of the Fisheries Act, which includes responsibility for administration and enforcement of the provisions dealing with physical alteration of fish habitat. The Department of the Environment has been assigned responsibility for administration and enforcement of the Fisheries Act provisions dealing with the deposit of deleterious substances into water frequented by fish through a 1978 Prime Ministerial decision. A 1985 Memorandum of Understanding between DFO and DOE reiterated the responsibilities of both departments and set out mechanisms for information sharing and co-operation.

Provincial, territorial and municipal governments also have powers that can have an impact on fishery resources and fish habitat through their authority to deal with water pollution and land and water use activities (e.g., forestry, mining, agriculture, hydro-electric power developments).

In order to implement the habitat protection and pollution prevention provisions of the Fisheries Act, the federal, provincial and territorial governments may co-operate to promote compliance and enforce these provisions. This co-operation may include the designation of enforcement officials of these governments as Fishery Officers or Fishery Inspectors under the Act.

Authorities Responsible for Implementing the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act

Minister of Fisheries and Oceans

The Minister of Fisheries and Oceans is the federal Minister accountable to Parliament for all sections of the Fisheries Act. The Minister has responsibility for making regulations under the Act; designating Fishery Officers, Fishery Guardians, Fishery Inspectors, and Analysts; exercising the discretionary powers under the Act; and issuing Ministerial orders.

Minister of the Environment

As explained above, the Minister of the Environment has the responsibility for administration and enforcement of the pollution prevention provisions of the Fisheries Act.

The assignment of administrative and enforcement authority with respect to subsection 36(3) does not include powers to make regulations, to appoint Fishery Officers, Fishery Guardians, Fishery Inspectors and Analysts, or to issue Ministerial orders. These powers rest with the Minister of Fisheries and Oceans.

Interdepartmental and Intergovernmental Co-operation

Administrative and enforcement activity by the Department of Fisheries and Oceans and the Department of the Environment may depend on working arrangements between the two federal departments at the regional level, or between DFO or DOE and a provincial or territorial agency. Those activities may also be governed by administrative agreements signed with provincial and territorial governments by the Minister of Fisheries and Oceans under the Department of Fisheries and Oceans Act. Where administrative agreements involve the pollution prevention provisions of the Fisheries Act, both the Minister of Fisheries and Oceans and the Minister of the Environment sign the document.

Personnel Who Are Involved in Compliance Promotion

Personnel from the Department of Fisheries and Oceans and the Department of the Environment carry out many activities intended to promote compliance, including developing guidelines and codes of practice and providing technical advice. These personnel may review proposals and referrals for new projects and provide technical advice on how to achieve compliance. They may also provide expert testimony in court to support prosecutions under the Fisheries Act.

Habitat Management personnel from DFO, on behalf of the Minister of Fisheries and Oceans, may authorize harmful alteration, disruption or destruction of fish habitat pursuant to subsection 35(2) of the Act. Project proposals that may affect fish habitat are received directly from proponents or through various referral processes from other government agencies. Habitat Management personnel review these proposals and provide technical advice on avoiding and/or mitigating potential effects on fish habitat; or where this is impossible and the proposal is nevertheless acceptable, advice on habitat compensation. Their activities are guided by the Policy for the Management of Fish Habitat (1986). Its operating (guiding) principle is "no net loss" of the productive capacity of fish habitats.

Enforcement Personnel

Enforcement personnel are individuals designated by the Minister of Fisheries and Oceans under the Fisheries Act as Fishery Officers or Fishery Guardians (section 5), or as Fishery Inspectors (section 38).

Powers of Fishery Officers and Fishery Guardians

Subject to limitations of their powers pursuant to subsection 5(1) of the Fisheries Act, Fishery Officers and Fishery Guardians are charged with enforcing all of the provisions of the Fisheries Act, including the habitat protection and pollution prevention provisions. However, they must exercise their powers in accordance with the requirements of the Canadian Charter of Rights and Freedoms. The enforcement powers of Fishery Officers and Fishery Guardians depend on whether they intend to conduct an inspection or a search. The main distinction between inspection and search will be discussed below.

Inspections

Inspection requires that a Fishery Officer or Fishery Guardian must have reasonable grounds to believe that there are activities or things that are subject to the Act or are relevant to its administration. In carrying out an inspection, the Fishery Officer or Fishery Guardian is verifying compliance with the Act and is not undertaking a search in order to gather evidence of an alleged offence.

To ensure compliance with the Act and regulations, a Fishery Officer or Fishery Guardian may, therefore, enter and inspect any place in which the Fishery Officer or Fishery Guardian believes on reasonable grounds there is any work or undertaking or any fish or other thing to which the Act or regulations apply. Activities or things regulated by the Act may be in any place including any premises, vessel or vehicle. Entry does not require an inspection warrant. There is one exception. A Fishery Officer or Fishery Guardian may not enter any place, premises, vessel or vehicle that is a dwelling place, unless the occupant has given consent or unless they have obtained an inspection warrant.

To conduct an inspection, a Fishery Officer or Fishery Guardian may:

  • open any container;
  • examine any fish or other thing and take samples of it;
  • conduct any tests or analyses and take any measurements;
  • require any person to produce records or documents for examination;
  • use or cause to be used any data processing system;
  • reproduce or cause to be reproduced any print-out or intelligible output for examination or copying; and
  • use or cause to be used any copying equipment.

A Fishery Officer or Fishery Guardian or anyone accompanying them, may enter on and pass through or over private property without being liable for trespass. In addition, a Fishery Officer has the power to authorize another person who may not be accompanying the Fishery Officer, to enter on and pass through or over private property.

Searches

Search requires the belief, on reasonable grounds, that an offence has been committed before a Fishery Officer may enter premises to search for evidence of an alleged offence. The officer may search for any thing that he or she believes on reasonable grounds will provide evidence of a violation of the Act, or that was used in connection with the commission of an offence against the Act. The Fishery Officer must conduct a search under the authority of a search warrant, except when exigent circumstances make it impracticable to obtain a warrant and, under those circumstances, the officer may enter and search without a search warrant. Under the Fisheries Act, exigent circumstances include situations in which the delay necessary to get a search warrant would result in danger to human life or safety or the loss or destruction of evidence.

In conducting a search, a Fishery Officer may exercise any of the powers that are described above under the heading "Inspections".

Although the Fisheries Act does not authorize a Fishery Guardian to conduct searches, a Fishery Guardian may do so pursuant to a search warrant obtained under subsection 487(1) of the Criminal Code or without a search warrant pursuant to section 487.11 of the Code. A Fishery Guardian may not conduct such searches if the Minister of Fisheries and Oceans imposes limits on the exercise of these powers when designating Fishery Guardians under subsection 5(1) of the Fisheries Act. Similarly, the Minister may impose limits on Fishery Officers when designating them.

Seizures

A Fishery Officer or Fishery Guardian may seize any thing that the Fishery Officer or Fishery Guardian believes on reasonable grounds was obtained by or used in connection with the commission of an offence against the Act or will afford evidence of an offence under the Act. The Fishery Officer or Fishery Guardian may use this power during an inspection or when investigating under the authority of a search warrant or without a search warrant in exigent circumstances. The Fishery Officer or Fishery Guardian may seize evidence in plain view as authorized by subsection 489(2) of the Code.

If the Fishery Officer or Fishery Guardian were to enter a place to carry out an inspection without any belief that an offence had occurred, and, during that inspection, came to the belief that there was a violation of the Fisheries Act, the Fishery Officer or Fishery Guardian would have three options:

  • the Fishery Officer or Fishery Guardian may seize evidence in plain view; or
  • if the Fishery Officer or Fishery Guardian wishes to search further and seize items that may not be in plain view, he or she must seek a search warrant; or
  • the Fishery Officer or Fishery Guardian may search further and seize such items without a search warrant where there are exigent circumstances and it would be impracticable to obtain a warrant.

Arrests

Under authority of section 50 of the Fisheries Act, and subject to the limitations set out in section 495 of the Criminal Code, a Fishery Officer or Fishery Guardian may arrest, without warrant, a person who the Fishery Officer or Fishery Guardian believes, on reasonable grounds, has committed an offence against the Act or any of its regulations, or whom the Fishery Officer or Fishery Guardian finds committing or preparing to commit an offence against the Act or any of its regulations. Fishery Officers and Fishery Guardians are "peace officers" under the Criminal Code when performing any of their duties or functions pursuant to the Fisheries Act and are authorized in using as much force as is reasonably necessary for that purpose.

Generally, Fishery Officers and Fishery Guardians are employees of the Department of Fisheries and Oceans. The Minister of Fisheries and Oceans may also designate federal, provincial and territorial officials as Fishery Officers or Fishery Guardians.

Duty to Assist

Fishery Officers and Fishery Guardians must be given all reasonable assistance to enable them to carry out inspections and to exercise their inspection powers, and they must also be provided with any information relevant to the administration of the Fisheries Act or the regulations that they may reasonably require. It is an offence not to do so. It is also an offence to obstruct Fishery Officers and Fishery Guardians when they are carrying out their duties or functions under the Act, including investigations and searches.

Powers of Fishery Inspectors

Generally, Fishery Inspectors are employees of the Department of Fisheries and Oceans or the Department of the Environment. In some cases, employees of other federal, provincial and territorial governments may also be designated Fishery Inspectors by the Minister of Fisheries and Oceans.

Fishery Inspectors' powers relate specifically to the pollution prevention provisions of the Fisheries Act. Fishery Inspectors, like Fishery Officers and Fishery Guardians, must also exercise their powers in accordance with the requirements of the Canadian Charter of Rights and Freedoms. The distinction between the terms "inspections" and "searches" that is discussed above under the heading "Powers of Fishery Officers and Fishery Guardians" also applies to the activities of a Fishery Inspector.

Inspections

Fishery Inspectors have the power to enter and inspect any place, premises, vehicle or vessel, except a private dwelling place or any part of any place, premises, vehicle or vessel used as a permanent or temporary private dwelling place. A Fishery Inspector does not require an inspection warrant to inspect. Unlike the authority given by the Act to Fishery Officers and Fishery Guardians, there is no authority for Fishery Inspectors to obtain an inspection warrant to inspect a private dwelling place.

To enter and inspect, a Fishery Inspector must have reasonable grounds to believe that there is an activity resulting, or likely to result, in a deposit of a deleterious substance:

  1. in water frequented by fish; or
  2. in any place under conditions where the deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any water frequented by fish.

Fishery Inspectors may conduct inspections, including:

  • examining any substance or product;
  • taking samples of any substance or product;
  • conducting tests; and
  • taking measurements.

Searches and Seizures

Fishery Inspectors may enter and search for and seize any thing that the Fishery Inspector believes on reasonable grounds will afford evidence of an offence under the Act or was used in connection with the commission of an offence against the Act. They must do so under the authority of a search warrant authorized under subsection 38(3.2) of the Fisheries Act (search powers) or under subsection 487(1) of the Criminal Code (search and seizure powers), unless there are exigent circumstances where it would be impracticable to obtain a warrant as authorized by subsection 487.11 of the Code. The Fishery Inspector may seize evidence in plain view as authorized by subsection 489(2) of the Code.

As stated earlier, under the Fisheries Act, exigent circumstances include situations in which the delay necessary to obtain the search warrant would result in danger to human life or safety or the loss or destruction of evidence.

A Fishery Inspector may exercise powers of search if that Fishery Inspector believes on reasonable grounds, during an inspection, that an offence has been, is being or is about to be committed.

Arrests

Fishery Inspectors are not authorized to arrest under the pollution prevention provisions of the Fisheries Act. Nor are they authorized to arrest under section 495 of the Criminal Code, since they are not peace officers.

Reporting and Directions

Anyone who owns, manages or controls a deleterious substance has a duty to report any deposit or danger of deposit out of the normal course of events to a Fishery Inspector or such other person or authority as is prescribed by the regulations.

In the case of deposit of a deleterious substance, or serious and imminent danger of deposit, a Fishery Inspector may take or direct remedial measures. Directions by Fishery Inspectors are further discussed in the chapter entitled "Responses to Alleged Violations".

Duty to Assist

Fishery Inspectors must be given all reasonable assistance to enable them to carry out their inspection duties and functions, and they must also be provided with such information relevant to the administration of section 38 of the Fisheries Act that they may reasonably require. It is an offence not to do so. It is also an offence to obstruct them when they are carrying out their duties or functions under the Act, including investigations and searches.

Attorney General of Canada and Officials

Generally, the Attorney General of Canada has responsibility for all litigation relating to the Fisheries Act.

While Fishery Officers, Fishery Guardians and Fishery Inspectors may lay charges for alleged offences under the Act, the ultimate decision on whether to proceed with prosecution of the charges rests with the Attorney General of Canada. However, in some provinces or territories, provincial or territorial officials that have been designated as Fishery Officers, Fishery Guardians and Fishery Inspectors may refer charges to the provincial or territorial Crown Attorney.

In these cases, responsibility for prosecution rests with the respective provincial or territorial Attorney General. With respect to an application for an injunction or a civil suit for recovery of costs in the various circumstances in which such recovery is allowed under the Act, enforcement personnel will recommend these civil actions to officials of the Attorney General. The legal counsel representing the Attorney General has the ultimate decision on proceeding with the injunction or civil suit for cost recovery.

Courts

The courts make the final decision regarding disposition of injunctions, prosecutions and civil suits brought by Her Majesty in Right of Canada, a province or a territory under the habitat protection and pollution prevention provisions of the Fisheries Act. They also have authority to impose penalties and/or court orders following the conviction of a Fisheries Act offender.