This case involved a fish harvester who plead guilty to catching undersize whelk. After a general review of the principals of sentencing for fisheries matters, the court dealt with the issue of forfeiture of the catch. In doing so it said "[T]he amount of the fine must be set in conjunction with the issue of forfeiture. The fact there has been a mandatory forfeiture of a significant quantity of fish, is a factor which leads courts to significantly reduce the amount of a fine imposed under s. 78: See R. v. Cox, cited above. This requires that the forfeiture issue be considered before determining the amount of the fine" (para. 42). The court then applied this principal by reducing the fine it would have imposed because it forfeited the proceeds of sale of the seized whelk in the amount of $12,180.48.

The court also enunciated the principal that "a fine must be significant enough to be more than the cost of doing business".

This case involved a a 71 year old man who was caught setting a net across a creek from which three trout were retrieved. He was fined $3,000 for illegally fishing with a net and $1,000 for illegal possession of three trout. After reviewing a number of authorities regarding forfeitures under the Fisheries Act and concluding that it had the discretion to order forfeiture, the court declined to make such an order.

This case involved a fish harvester caught with crab caught under a improperly marked buoy. The crab was seized and sold for $6,832.80.

After reviewing the applicable authorities including R v. Rideout, [2005] N.S.J. nO. 9 (N.S.S.C.) (digested herein), the court concluded that since it is possible that all the elements of the offence could have been established before any crab were caught, forfeiture was not mandatory. However, in exercising its discretion, the court made a forfeiture order.

This case involved the sentencing of poacher of Atlantic salmon. The Court imposed an overall fine of $3,500, a two year fishing prohibition and forfeiture of a boat that was used in the commission of the offence. With respect to the forfeiture order, the Court cited a number of authorities including R v. Smith (1978), 15 Nfld. & P.E.I.R. 115 for the proposition that "while the court may consider the sentence when exercising its discretion as to whether or not forfeiture is appropriate" (para 29), forfeiture is not part of the sentence (paragraphs 21-9). The Court also stated that in exercising the discretion, forfeiture ought to be imposed "where it is established that but for the vehicle in question, the offence would probably not have been committed" (para. 30).

Editor's note: For cases taking a contrary approach to the question of whether forfeiture is part of the sentence see: R. v. McNeil, 2007 BCSC 773 (digested here) and R. v. Cox [2007] N.J. No. 71 (digested here) along with the editor's note in the digest of R. v. Sandover-Sly regarding the test set out in Thomas , Principles of Sentencing (digested here).

This is a non-fisheries case where the Supreme Court of Canada ruled that for offences under the Controlled Drugs and Substances Act the totality approach should not be applied.

This case involved the seizure of a large number of seal pelts pursuant to a prosecution under the Marine Mammal Regulations. After the expiration of an order granted by a justice of the peace to extend the time for detention of the seized items and before sentence for one accused and the trial of others, the fishers brought an application under both s. 490.01 of the Criminal Code and ss. 71(1) and 73.1(1) of the Fisheries Act for compensation for the value of the seized pelts that had been disposed of.

In this application, the fishers argued that the seized goods or the proceeds of sale there from should be returned because of the expiration of the order extending the time for detention. The Crown argued that the applications were premature.

In denying the application, the court ruled as follows:

1) Based in part upon s. 34(2) of the Interpretation Act, the Criminal Code provisions were not applicable (para. 18);

2) The court has no inherent jurisdiction to order that seized items be returned (para. 32);

3) The failure to obtain an extension of time to hold goods as required by s. 71(3) and (4) of the Fisheries Act does not necessarily make the seizure unlawful or give the court the authority to order the goods released (para. 33);

3) The court had no statutory jurisdiction to order return of the seized items until either (a) at a sentence hearing it has exercised its discretion under s. 72(1) to not order forfeiture; or (b) after the final conclusion of a proceeding under s. 73.1. For reasons that were not explained, the court also stated an order could result from an evidentiary ruling at trial? (para. 34).

Editor's note: The court's finding that the Criminal Code provisions regarding seized goods have no application is consistent with an earlier decision of the S.C.C. R. v. Ulybel Enterprises Ltd. 2001 SCC 56 (digested herein) at paragraph 37. For a B.C. case regarding the legal implications of failure to obtain an extension of time for detention of goods see R. v. Reid [2006] B.C.J. No. 1202, 2006 BCPC 220 (digested herein).

This case involved a vessel that was fishing during a closed in situation where the area had been closed by variation order shortly before the vessel started its fishing trip. At the trial of the licence holder, the licence holder did not appear and in his absence, after hearing evidence establishing the essential elements of the offence, a court imposed a conviction and ordered forfeiture of the proceeds of sale of the seized catch. At the subsequent trial of the captain, there was no conviction, as one charge was dismissed and one charge was withdrawn. Despite a demand for return of the proceeds of sale of the fish, the proceeds were retained by the Crown.

The vessel owner and captain later commenced a civil action for return of the proceeds of sale pursuant to s. 73.1(1) of the Fisheries Act. Relying upon Toronto [2002] S.C.R. 77 and other cases, the applicant argued that for the purposes of applying s. 73.1(1), the conviction of a licence holder (who was apparently not aboard the vessel) ought not to be allowed to trump the acquittal of the captain on the merits.

In response to this argument, the court appeared to concede that in some circumstances "evidence will be admissible to rebut the presumption that the person convicted committed the crime" (quoting form "Toronto"), but found that in the circumstances the applicants had not tendered sufficient evidence to do so. As a result, the application failed and the Crown was allowed to retain the proceeds of sale.

This is a sentencing case involving the poaching of a large number of abalone. In ruling that forfeiture of a boat, truck and other equipment should be considered part of the overall sentence (so as to reduce the fine or other sanctions that might otherwise be imposed), the court distinguished R v. Sandover-Sly 2002 BCCA 56 as a case where the accused had no property interest in the property being forfeited (para 79 & 83). It also relied upon R. v. Ulybel Enterprises Ltd. [2001] 157 C.C.C. (3d) 153 for the proposition that forfeitures is "one of the penalties available to the courts . . . " (para 80).

Editor's note: For a non fisheries case that takes a similar approach see R v. Craig [2007] B.C.J. No. 814, 2007 BCCA 234 at paragraph 78

Upon making an order for the forfeiture of a boat and outboard motor, the court said that:

In determining the nature of any fine which is appropriate must consider any forfeiture order in applying the totality principle of sentencing (see R. v. Spellacy (1995), 131 Nfld. & P.E.I.R. 127 (N.L.C.A.)) . . . If counsel seek to persuade a Court that a seized item is of such a large monetary value that its forfeiture would offend the principles of sentencing or that its forfeiture should result in a reduced fine, then counsel must establish the value of the item for which forfeiture is sought.

This case involved approximately 12,000 pounds of sable fish that were seized pursuant to the provisions of the Fisheries Act and sold pending trial. After obtaining a stay of proceedings for failing to provide a trial within a reasonable time, the Crown brought an application for forfeiture of the proceeds of sale of the sable fish under s. 72(3). At the hearing the defence made preliminary objections on the grounds that: (1) a stay of proceedings did not amount to an acquittal for the purpose of s. 72(3); and (2) the improper detention barred the Crown's application.

With respect to the stay, the court ruled that for the purposes or s. 72(3), a stay of proceedings amounted to an acquittal.

With respect to the improper detention, the court ruled that although the proceeds of sale of the fish was held improperly for period of time because the court did not get an continued detention order pursuant to s. 71(4), the improper holding ended when charges were laid. Based upon R. v. MacMillan Bloedel Ltd. , {1998} B.C.J. No. 908 (B.C.S.C.), the court ruled that since the improper holding was cured it was not a bar to the forfeiture proceeding.

This case involved a snow crab fisherman who was convicted of fishing out of his licenced area. In awarding a fine of $4,000, but refusing to order forfeiture of the catch valued at $35,362, the trial court relied upon the following mitigating factors: (1) Although the accused's belief that he was fishing in his area was not reasonable it was honest; and (2) the accused incurred unsubstantiated expenses of approximately $50,000 inclusive of fuel, crew, observer and legal costs. Upon appeal by the Crown, both the summary conviction appeal court and the N.S.C.A. reduced the fine to $2,000, but imposed a forfeiture order. In doing so, the N.S.C.A. held that based upon the unsubstantiated evidence of the $50,000 in expenses claimed to have been incurred, the trial court's failure to give sufficient weight to the principals of deterrence by not imposing forfeiture was unreasonable and therefore could be set aside based upon the test set out in R. v. Shropshire.

This case involved a charge against a west coast trawl fisherman for fishing over a fishing area boundary line into a closed area that was delineated as being on the seaward side of a 40 fathom contour line. At trial, the court relied upon evidence from a navigator who used a global positioning device (G.P.S.) to go to the co-ordinates recorded by the fisherman and take depth soundings.Given the evidence of the Navigator that the depths at these co-ordinates placed the accused in a closed area, the court convicted.

Upon summary conviction appeal, the conviction was overturned and an acquittal entered on the grounds that the trial judge failed to take into consideration the fact that the expert witness was not aware that the co-ordinates supplied by the fisherman were created using Loran – C as opposed to G.P.S. Since the expert did not have the opportunity make adjustments for this difference (a distortion of up to 1.2 miles) his evidence could not be relied upon.

Although an acquittal was entered, the proceeds from the forfeiture of fish were not returned on the basis of s. 72(3) of the Fisheries Act, because the court was satisfied on a balance of probabilities that the accused was fishing out of season.

Upon further appeal by the Crown, the BCCA denied the Crown's appeal, but allowed a separate appeal by the defence on the forfeiture issue and overturned the forfeiture order.

Not yet available.

This case involved an aboriginal fisher who, after participating in a test/protest snow crab fishery was convicted of: (1) having on board a crab trap without a valid tag, and (2) fishing for snow crab without a valid licence. Upon conviction, his sentence included a conditional discharge and a partial forfeiture of the proceeds of sale of his catch ($28,599.60 of $38,599.60). Upon a summary conviction sentence appeal by the Crown, the court upheld the sentence. With respect to the partial forfeiture order, the court applied R. v. Mood (1999) 174 N.S.R. (2d) 292 (digested herein) for the proposition that the mandatory forfeiture provision of s. 72(2) of the Fisheries Act only apply when "the offence was in relation to the fish that were seized, and they were an essential element of it" (Para. 33 quoted from Mood para. 16). The partial forfeiture order of the sentencing judge was upheld under s. 72(1) of the Act.

This case involved a charge against an American crab fisherman of illegal fishing pursuant to s. 4(2) of the Coast Fisheries Protection Act (See the digest of the case under “Offences”). After conviction, the Crown sought a fine of $30,000, forfeiture of two crab traps seized, the proceeds from sale of the crab that was caught ($132,448) and forfeiture of a bond posted for the release of the boat in the amount of $50,000.

The mitigating factors in favour of the accused were:

1) He did not set out deliberately to flout the law;
2) He followed the directions of the D.F.O. officials and co-operated in every way;
3) He had no previous related record;
4) His behaviour could be classified as negligent in nature rather than nefarious; and
5) He had already paid a price for his actions by losing command of the fishing vessel.

On the basis of the above findings, the court declined to order forfeiture of the bond, but did order forfeiture of the traps and proceeds of sale of the catch. It also imposed a fine of $25,000.

This case involved two divers who were caught poaching 16 lobsters, three of which were short and one of which was a female with eggs. Upon entering guilty pleas, the sentencing judge imposed fines of $1,500 each plus forfeiture of a boat worth $5,000 and other gear worth $4,000 to $5,000.

Upon appeal, the court applied R. v. Gould [1998] N.J. No. 318 to set aside the forfeiture order on the grounds that it was “out of line with others involving similar offences” (para. 41).

The case involved an application under s. 75(1) of the Fisheries Act for return of a boat that had been forfeited pursuant to s. 72(1) of the Act. Although the act provided that the application must be made within 30 days after the forfeiture, the application was not made until 43 days after the forfeiture.

Upon the Crown making a preliminary objection, the court ruled that the application was barred because it was outside the 30-day time period allowed for such applications and because “there is no statutory authority for extending the period of time” (para. 30.).