Compliance and enforcement policy for habitat and pollution provisions of Fisheries Act: chapter 6

Responses to Alleged Violations

Enforcement measures are directed towards ensuring that violators comply with the Fisheries Act within the shortest possible time and that violations are not repeated.

Enforcement personnel will respond to suspected violations. They will take into account the harm or risk of harm to fish, fish habitat and/or human use of fish. If they determine that there is sufficient evidence a violation has occurred, they may take enforcement action.

Criteria for Responses to Alleged Violations

If enforcement personnel are able to substantiate that an alleged violation of the habitat protection or pollution prevention provisions of the Act has occurred and there is sufficient evidence to proceed, they will decide on an appropriate action, applying the criteria outlined below.

Nature of the Alleged Violation

Factors considered in assessing the nature of an alleged violation will include:

• the seriousness of the damage or potential damage to fish habitat, the fishery resource, or the risks associated with the human use of fish;
• the intent of the alleged violator;
• whether it is a repeated occurrence; and
• whether there were attempts by the alleged violator to conceal information or otherwise circumvent the objectives and requirements of the habitat protection and pollution prevention provisions.

Effectiveness in Achieving the Desired Result with the Alleged Violator

The desired result is compliance with the Act in the shortest possible time and with no further occurrence of violations, in order to protect fish and fish habitat and human use of fish. Factors to be considered include:

• the alleged violator's history of compliance with the habitat protection and/or pollution prevention provisions;
• the alleged violator's willingness to co-operate with enforcement personnel;
• evidence and extent of corrective action already taken; and
• the existence of enforcement actions by other federal or provincial/territorial authorities.

Consistency in Enforcement

Enforcement personnel aim to achieve consistency in their responses to alleged violations. Accordingly, they will consider how similar situations in Canada are being or have been handled when deciding what enforcement action to take.

Range of Responses to Alleged Violations

The following responses are available to deal with alleged violations of the habitat protection and pollution prevention provisions of the Fisheries Act:

• warnings;
• directions by Fishery Inspectors;
• orders by the Minister;
• injunctions; and
• prosecutions.

Warnings

Enforcement personnel may use warnings:

• when they have reasonable grounds to believe that a violation of the Act has occurred;
• where the degree of harm or potential harm to the fishery resource, its supporting habitat or to human use of fish appears to be minimal; and
• where the alleged violator has made reasonable efforts to remedy or mitigate the negative impact of the alleged offences on the fishery resource and its habitat.

In deciding whether to use warnings or another enforcement response, enforcement personnel may also consider:

• whether reasonable efforts have been taken to remedy or mitigate the negative consequences of the alleged offence or further offences;
• whether the alleged violator has a good history of compliance with the habitat protection and/or the pollution prevention provisions of the Fisheries Act; and
• whether sufficient action has been taken to ensure that future offences are not committed.

Warnings will be confirmed in writing and will contain the following information:

• the section of the Act or regulations involved;
• a description of the alleged offence; and
• a statement that, if the alleged violator does not take necessary action, enforcement personnel will consider taking other steps.

When enforcement officers use a warning, it brings an alleged violation to the attention of an alleged violator, in order to promote any necessary action by the recipient. Warnings do not have the legal force of an order. Furthermore, they are not a finding of guilt, civil liability or an administrative decision. Warnings and the circumstances to which they refer will form part of the records of either the Department of Fisheries and Oceans or the Department of the Environment, whichever department carried out the investigation. In addition, warnings will be taken into account in future responses to alleged violations, and may influence the frequency of inspection.

When an alleged violator receives a warning, they may wish to provide written comments to the Fishery Inspector, Fishery Officer or Fishery Guardian who signed the warning. These comments will be placed in the compliance history file of the alleged violator, along with the warning. The comments will be taken into consideration by enforcement personnel and, where appropriate, a response will be provided.

Directions by Fishery Inspectors

Where there is a deposit of a deleterious substance out of the normal course of events to waters frequented by fish, or where there is serious and imminent danger of such an incident and immediate action is necessary, enforcement personnel who are appointed as Fishery Inspectors under the Fisheries Act may issue directions regarding remedial or preventative action to be taken by the alleged offender:

• who owns the deleterious substance;
• who has or had charge, management or control of the substance at the relevant time; or
• who caused or contributed to the deposit or the danger thereof.

Fishery Inspectors may issue a direction where immediate action is necessary to counteract adverse effects of a deposit of a deleterious substance or to prevent a serious and imminent deposit of a deleterious substance. The direction may require the person to take all reasonable measures, consistent with safety and the conservation of fish and fish habitat:

• to counteract, mitigate or remedy any adverse effects that result or may result from the incident; or
• to prevent a serious and imminent deposit of a deleterious substance out of the normal course of events.

As the Fisheries Act already imposes on persons the obligation to take such measures, a Fishery Inspector will not ordinarily issue such directions unless the obligation is not being met. The directions will be given in writing; however, during the initial response to a situation out of the normal course of events, directions may be given orally and later confirmed in writing.

Failure to comply with a direction by a Fishery Inspector may lead to prosecution of the individual, company, or government agency for such failure. Also, in the event of failure or inability to comply with a direction by a Fishery Inspector, the Fishery Inspector is empowered under the Act to take remedial measures.

Order by the Minister of Fisheries and Oceans

Under subsection 37(1) of the Fisheries Act the Minister of Fisheries and Oceans, or designate, may request plans, specifications, studies, procedures, schedules, analyses, samples or other information concerning any work or undertaking to enable the Minister to determine whether the work or undertaking results, or is likely to result, in harm to fish habitat or a deposit of a deleterious substance that constitutes or would constitute an offence under the Act. Failure to respond to the request within a reasonable time or within the date specified by the Minister may lead to prosecution.

If the Minister of Fisheries and Oceans, after examining information received under subsection 37(1), is of the opinion that an offence under the habitat protection and pollution prevention provisions is being or is likely to be committed, the Minister, with the approval of the Governor in Council or if authorized by the regulations, may issue orders:

• requiring modifications of or additions to a work or undertaking or modifications to specifications, procedures or schedules related to the work or undertaking;
• restricting the operation of the work or undertaking; or
• only with the approval of the Governor in Council, closing the work or undertaking for a stipulated period of time.

The purpose of such orders under subsection 37(2) of the Fisheries Act is to prevent the occurrence or repetition of a violation of the habitat protection and pollution prevention provisions of the Fisheries Act. The Minister may resort to these types of orders where a violation of the habitat protection and pollution prevention provisions has occurred or seems likely to occur.

Failure to comply with an order may result in prosecution.

An order to close an operation will normally be used only where an order to modify or alter would not achieve compliance and prevent harm to the fish, or fish habitat, or both.

Ministerial orders may be used in conjunction with prosecutions. If the Minister, when issuing the order, has reasonable grounds to believe that a violation has, in fact, taken place, and if the offence giving rise to the order meets the criteria for prosecution listed below, initiation of prosecution proceedings will be recommended to the Attorney General.

Injunctions

The Attorney General has the authority to seek from the court an injunction in order to stop an alleged violation of the habitat protection and pollution prevention provisions of the Fisheries Act. Enforcement personnel will recommend injunctive action where continuation of the activity that is alleged to be a violation of the Fisheries Act constitutes a significant and immediate threat to fish or fish habitat, including when:

• a direction by a Fishery Inspector is not followed or is judged not to be suitable;
• an order by the Minister of Fisheries and Oceans will not address the problem in a timely fashion; or
• an order issued by the Minister is not being complied with.

In addition to seeking an injunction, the Crown may initiate:

• prosecution; or
• civil action for recovery of costs where the government was required to take action due to the failure of an alleged violator to comply with a direction issued under the habitat protection or pollution prevention provisions.

Inspections will be carried out to ensure that the alleged violator subject to the injunction is complying with its terms. If the party does not comply with the injunction, the Attorney General may apply to the court for enforcement of those terms.

Prosecution

Prosecution is the preferred course of action where evidence establishes that:

• the alleged violation resulted in risk of harm to fish or fish habitat;
• the alleged violation resulted in harmful alteration, disruption or destruction of fish habitat (not authorized by the Minister of Fisheries and Oceans);
• the alleged violator had previously received a warning for the activity and did not take all reasonable measures to stop or avoid the violation;
• the alleged violator had previously been convicted of a similar offence.

Enforcement personnel will examine each case to determine whether a warning, a direction by a Fishery Inspector, Ministerial order or injunction is the appropriate alternative to prosecution. Prosecution may still be the enforcement action chosen, in accordance with the criteria set out in "Responses to Alleged Violations", above.

Prosecution will always be pursued where evidence establishes that:

• there is evidence that the alleged violation was deliberate;
• the alleged violator knowingly provided false or misleading information to enforcement personnel;
• the alleged violator obstructed enforcement personnel in the carrying out of their duties or interfered with anything seized under the Act;
• the alleged violator concealed or attempted to conceal or destroy information or evidence after the alleged offence occurred; or
• the alleged violator failed to take all reasonable measures to comply with a direction or an order issued pursuant to theAct.

It is the role of the Attorney General to approve prosecutions based on evidentiary and public interest considerations. Alleged offences under the Fisheries Act can be prosecuted either by summary conviction or by indictment. The Crown prosecutor has the prerogative to select the type of prosecution after examining the facts and evidence of the case, and may take into account any recommendation by a Fishery Officer, Fishery Guardian or Fishery Inspector.

The onus is on everyone to be aware of the responsibilities concerning pollution prevention and protection of fish habitat. Information on these legal responsibilities is available from the Department of Fisheries and Oceans and the Department of the Environment through regional offices.

To secure a finding of guilt for an alleged violation of the habitat protection and pollution prevention provisions of the Fisheries Act or of regulations made under them, the Crown prosecutor must prove the accused guilty beyond a reasonable doubt. The prosecutor does not have to prove that the accused intended to violate the law. It is open to the accused to avoid a finding of guilt by establishing, on a balance of probabilities, that:

• they exercised all due diligence to prevent commission of the offence; or
• they reasonably and honestly believed in the existence of facts that, if true, would render their conduct innocent.

Summary proceedings under the Fisheries Act may be instituted at any time within two years after the time when the subject matter of the proceedings came to the attention of the Minister of Fisheries and Oceans. Enforcement personnel will bring any charges in as short a time as possible, having regard to the need for proper substantiation of the alleged violation and gathering of sufficient and appropriate evidence.

There are no such time limits when legal proceedings are initiated by way of indictment.