Sanctions - Case Summaries
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Licences – sanctions – s. 7 of Fisheries Act not to be used to impose penalty
Mathews v. Canada , No. A-677-96 (Fed. C.A.)
This case involved an East Coast snow crab fisherman who allegedly failed to comply with the terms and conditions of his licence by both failing to hail before changing areas and exceeding his quota on three different occasions. Although a prosecution in the courts was commenced, instead of continuing the prosecution, the Department of Fisheries decided to seek a licence sanction from the Minister through his delegate, the Regional Director.
The licence sanction process was initiated by a letter from the Area Manager advising the fisherman that he was forwarding a request to the Regional Director for a licence sanction. After receiving submissions from both the Area Manager and the fisherman, the Regional Director, in his capacity as delegate of the Minister, withheld the fisherman’s licence for the first 3 weeks of the following fishing season and reduced his quota by 50%. In doing so, his letter made it clear that this sanction was a penalty for his failure to comply with the fisherman’s licence conditions. A conservative estimate of this penalty in monetary terms was $82,600, which was much greater than the fine he would have received had a court convicted him.
In upholding the lower level court’s decision to declare the Minister’s sanction invalid, the Federal Court of Appeal said as follows:
"In exercising the power conferred on him by section 7 of the Fisheries Act to issue at his "absolute discretion" a fishing licence, the Minister of Fisheries and Oceans may not do it by attaching to the licence limitations or conditions, the sole purpose of which is to impose sanctions for the applicant’s past behaviour. . . . "It may be that past compliance . . . can be a relevant factor for the Minister’s consideration as an aspect of conservation . . . but s. 7 . . . may not be exercised for the primary purpose of penalizing an applicant . . . That section does not include the power to enforce penalties for offences for which prosecution is otherwise provided under the Act."
Editors note: See the article on this case entitled "Licence Sanctions – A Court Imposes Limits on the Minister’s Discretion" in the Papers and Articles section of this page.
Licences - sanctions - s. 7 of Fisheries Act not to be used to impose penalty
Kelley v. Canada , (Sept. 7, 1997) T-1832-6 (Federal Court)
Mr. Justice MacKay followed his early decision in R. v. Mathews (digested herein) to hold that the Minister of Fisheries cannot use section 7 of the Fisheries Act to impose licence sanctions. In doing so, he distinguished Comeau Seafoods Ltd. v. Canada (digested herein). He then went on to hold that even if he is wrong, the imposition of a licence sanction which would cost the fisherman approximately $45,000 dollars, when a Provincial Court judge thought a $1,000 fine would be adequate, was "so unreasonable that it was beyond the discretion granted to the Minister".
Counsel for the Accused: John L. MacDougall, Q.C.
Counsel for the Crown: John L. Ashley