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Statutes of Newfoundland and Labrador 2006


CHAPTER 45

AN ACT TO AMEND THE FISH INSPECTION ACT

(Assented to December 12, 2006)

Analysis


        1.   S.2 Amdt.
Definitions

        2.   S.3 Amdt.
Appointment

        3.   S.4 Amdt.
Regulations

        4.   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

        6.   S.13.1 Added
Offence

        7.   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. (1) Paragraph 2(b) of the Fish Inspection Act is repealed.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             (4)  Paragraph 2(q) of the Act is repealed.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 Subsection 3(2) of the Act is repealed and the following substituted: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.

 

        4. Section 9 of the Act is repealed and the following substituted:

Search and seizure with warrant

        9. (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 contain terms and conditions that the Provincial Court judge considers advisable in the circumstances.

             (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 the terms and conditions of a licence or order issued under this Act or the 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.