Forfeiture - Case Summaries
The database contains 30 case summaries relating to Forfeiture. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Offences – Forfeiture – Abalone Poaching
R v. Sandover-Sly , 2002 BCCA 56
This case involved the poaching of 4,100 abalone weighing 750 pounds with a value of $18,750 at a time when there had been a coast wide moratorium on the harvesting of abalone for approximately eight years. One of the accused plead guilty and was sentenced on a joint submission to a fine of $7,000 and ordered to pay $5,000 compensation and to forfeit his diving gear. Upon conviction of the second accused, the court imposed a fine of $7,000 and granted an order for forfeiture of, amongst other things, a tug and barge valued at $70,000 owned by a company which in turn was owned by the second accused’s father.
Upon appeal, the second accused argued that his penalty offended the principle of parity because when considering the $70,000 value of the tug and barge, it was much higher than that of the co-accused. The Court of Appeal, upheld the forfeiture order for the following reasons:
1. Since the use of the tug and barge was not merely incidental to the commission of the offence, it could be confiscated without regard to the totality of the offence;
2. In this case, forfeiture was appropriate because of the intimate involvement of the barge and tug with the commission of the offence and because this was an “egregious environmental offences against a threatened species” (para 29) which “dealt a staggering blow to the conservation efforts to rehabilitate the industry” (para. 14); and
3. Forfeiture did not offend the principle of parity because the accused did not own the tug and barge.
Editor’s note: In determining whether or not forfeiture ought to be considered as part of the sentence, the court applied a test set out in Thomas, Principles of Sentencing. In the quote cited from Thomas, the text book says, “[t]hese cases may justify the view that where the property is specifically adapted for the commission of the offence, or has no other use to the offender, it may be confiscated without regard to the totality of the other sentence . . .” (para. 26) [emphasis added]. In the peculiar facts of this case, the tug boat had no other use to the offender because he did not own the logging company which owned the boats. However, in the more usual case of a commercial fisherman, the boat would have another use to the offender, namely earning his or her living through commercial fishing.
See also the quote from Thomas where it refers to special hardship being considered by the court and the quote from R. v. Smith,  N.J. No. 10 where it says that it the court can take into consideration forfeiture orders when sentencing.
Although not referred to, this court seems to reject the approach taken by R. v. Gould  N.J. 318 (Nfld. S.C.).
Offences – Forfeiture of Proceeds of Sale from In Rem proceedings - Practice - Parallel Jurisdiction with respect to the seizure of fishing vessels of the Superior Courts under the Fisheries Acts and the Federal Court under its In Rem Jurisdiction
R v. Ulybel Enterprises Ltd., 2001 SCC 56
This case involved a Canadian registered ship which was given a provisional registration in Panama without first obtaining a deletion certificate from the Canadian Registrar of Ships. It then fished in the NAFO fishing zone without a licence, which it could do legally if it was a foreign ship, but not as a Canadian ship.
Pending the trial, the ship was seized pursuant to section 51 of the Fisheries Act. During that time, it was also arrested by two claimants in two separate Federal Court admiralty proceedings. One claimant was a bank suing for default under a marine mortgage and the second claim involved a claim to title by some shareholders of the vessel’s owner. Both claimants arrested the vessel. The Crown intervened in one of the Federal Court proceedings and obtained an order that the vessel be released from arrest and sold pending litigation. The stated reason for the Crown’s application was to avoid the heavy costs being incurred by the Crown for the preservation of the vessel. Subsequent to the sale of the vessel, the owner of the vessel was convicted of fishing without a license and sentenced with a term of the sentence providing for forfeiture of $50,000 from the proceeds of sale.
Upon appeal, to the Newfoundland Court of Appeal one of the issues raised was whether or not the sale of the vessel prior to the determination of the criminal proceedings prevented the Crown from claiming forfeiture of the proceeds of sale of the vessel. The court analyzed sections71 & 72 of the Fisheries Act and concluded that the legislation did not authorize the court to dispose of a seized vessel prior to trial and retain the proceeds of sale. The court concluded that by selling the vessel, the Crown had released it from detention which terminated any forfeiture rights the Crown had in the criminal proceeding pursuant to the provisions of the Fisheries Act.
Upon appeal to the Supreme Court of Canada, this decision was reversed. In doing so, the court relied upon the following principles of statutory interpretation to arrive at the following conclusions:
1. Using the grammatical and ordinary meaning of the words in section 72 of the Fisheries Act, the court concluded that an order of forfeiture could include the forfeiture of the proceeds of a fishing vessel.
2. From a review of the legislative history of the Fisheries Act, the court concluded that the 1991 amendments to the Act broadened the scope of the forfeiture provisions beyond that of forfeiture of proceeds of perishables.
3. Looking at the scheme of the Act, the court concluded: (a) section 489.1 of the Criminal Code (restitution of seized property) has no application; (b) a person charged under the Fisheries Act cannot rely upon the presumption of innocence to delay a person with an in rem action from obtaining his remedy and correspondingly, after a person charged under the Fisheries Act has been found guilty and the presumption of innocence is spent, there is nothing in the Fisheries Act that would immunize the proceeds of sale realized pursuant to a civil (presumably in rem) proceeding from forfeiture.
4. Looking at the legislative context, the court concluded that the words “any proceeds” in section 71(1) of the Fisheries Act are not limited to proceeds of perishables.
5. Looking at the legislative context, the court concluded that the bail provisions (s. 71(2) of the Fisheries Act were inconsistent with an Court of Appeal’s interpretation of the Act which concluded that the right to forfeiture was lost upon the vessel the Crown losing physical detention. In doing so the court noted that although the Act does not provide for forfeiture of a security deposit granted as bail, the right to forfeiture upon the posting of security was contractual. The Act should be interpreted so as to “harmonize the interest of the accused, the Crown, the employees and creditors that have an interest in getting productive, income-earning property back into circulation.
6. Looking at the legislative context, the court noted that parallel in rem proceedings were contemplated as demonstrated by section 75 of the Act which allows a person who has an interest in property ordered forfeited by the court to apply for relief from forfeiture. Although this is ordinarily done in a provincial superior court, it is also possible to do by way of in rem action in the Federal Court.
7. Looking at the legislative context, the “provisions of the Federal Court Act and the provisions of the Fisheries Act can and should be read as a consistent, harmonious scheme for the regulation of maritime matters.” For example, if a fishing vessel were seized pursuant to the provisions of the Fisheries Act and the owner was unable to obtain its release by posting a bail, a mortgage holder ought to be able to obtain a court ordered sale of the vessel in admiralty court and have the Crown’s claim to forfeiture dealt with in the same court.
In allowing the Crown to claim forfeiture of the proceeds of sale, the court suggested that it might have held otherwise, if the Crown had instituted proceedings in the Federal Court itself for the sole purpose of an “end run around the limitations in the Fisheries Act”.
Editor’s note: This case is very useful because of its thorough review of the forfeiture provisions of the Fisheries Act. Although it appears to confirm the discretion of the Minister to refuse to accept a security deposit to secure the release of a vessel (para. 48), it only does so in obiter and does not consider whether or not this would be contrary to the Charter (see R. v. “Peonia No. 7” and Jeon Meang Yel (20 March 1986) (Prov. Ct. of Nfld. District of St. John’s) (Wicks, L.W., P.C.J.). It deals with the issue of whether or not the seizure provisions of the Criminal Code apply and it also suggests that parties releasing vessels on bail should include a contractual provision governing what happens in the event of a conviction. With respect to the priority between a Crown claim to forfeiture and a mortgage, see an early proceeding between these parties at 2001 FCT 1034 which at the time of writing, was under appeal.
Offences – Forfeiture
R v. Sandover-Sly,  BCCA 445
This case involved an appeal from a sentence for fishing for abalone without a licence, which imposed forfeiture of a tug and barge used in the commission of the offence in addition to a fine. Although the appellant was the general manager of the Company that owned the tug and barge, it was his father who was the sole beneficiary of the Company’s property. As a consequence, the appeal court ruled it had no jurisdiction to set aside the forfeiture. The proper procedure was for the owner of the tug and barge to bring a separate proceeding under section 75(1) of the Fisheries Act.
Offences - Forfeiture
R v. Hudson, 2000 PESCTD 18
This was a sentence appeal involving an accused with a lengthy record who was convicted for illegal fishing of Lobster. Amongst other things, the court upheld an order for forfeiture of a dory, outboard motor and other miscellaneous items with an estimated value of $2,500.
Offences – Forfeiture
R v. Weir , N.J. No. 4 (NFLD. S.C.)
This case involved an appeal from a sentence imposed for fishing cod during a closed time. Upon appeal, the court upheld a crown appeal of an $800 fine as too low and set aside a forfeiture of boat and motor belonging to one of the accuseds. In doing so, Dymond J. reviewed some of the prior authorities and said as follows:
Fines are such that they range in maximums that should deter people from fishing out of season. The forfeiture should therefore be looked upon as additional punishment for the more serious offences under the Fisheries Act. Otherwise the wording “in addition to any punishment imposed”, would make little sense if forfeiture was to go in every case. The fact that forfeiture is made discretionary means it should not always be granted because the Crown requests forfeiture.
Offences – Forfeiture - Intermixed Stocks
R v. Cox
Forsey , N.J. No.264 (Nfld. Prov. Ct.)
This case involved two accuseds, who were convicted of taking an illegal bycatch of cod and other species while fishing for skate.
The court considered section 51(b) of the Fisheries Act and exercised its discretion to not order forfeiture of intermixed fish. In exercising this discretion it considered, amongst other things, the following:
1) The problem of cod bycatch adversely affected the way the accuseds could fish both their skate and redfish quota;
2) The accuseds were already losing a significant amount because of a mandatory forfeiture pursuant to s. 51(a) of the Act; and
3) One of the accuseds was not able to take his full skate quota because of the high bycatch of cod.
Offences – Forfeiture Offences – Sentencing – No Mandatory Forfeiture of fish under s. 72(1) of the Fisheries Act.
R v. Mood , N.S.J. No. 59 (N.S.C.A.)
This case involved a fisherman convicted under section 13(1) (c) of the Atlantic Fishing Regulations of permitting his crew to haul previously set lobster traps without him (the licence holder) being aboard the vessel. Upon sentencing, the trial judge refused to apply the mandatory forfeiture provisions of section 72(1) of the Fisheries Act to the proceeds of sale of the lobster catch. Upon a summary conviction appeal, the Supreme Court overturned the trial decision and ordered forfeiture. Upon further appeal to the Nova Scotia Court of Appeal, the decision of the trial judge was restored.
The reasons of the court for declining to apply s. 72(2) were as follows:
following the decision of R. v. Morash (1994), 129 N.S.R. (2d) 34, the fisheries officers did not have reasonable grounds to seize the lobster because the offence did not relate to the catching of fish but to the granting of permission to use a vessel in fishing.
Even if the initial seizure could be justified under s, 51 of the Fisheries Act, the test for mandatory forfeiture under s. 72(2) is whether a person is convicted of an offence that "relates to fish seized." That is, where the fish is a necessary element of the offence.
In this case, fish in the form of lobsters, did not enter the picture until all of the elements of the offence were in place.
Section 72(2) appears to be intended to apply most obviously to "catching" offences, such as taking or keeping fish of the wrong species or the wrong quantity or in the wrong place at the wrong time with the wrong gear rather than licensing offences such as who can own and operate a vessel.
Correct interpretation did not detract from enforcement, because if fish are caught in situations of flagrancy, the court still has the discretion under section 71(1) to order forfeiture.
Editor’s note (14 March 05): This case has been applied in: R. v. Paul  N.S.J. No. 295, 2003 NSSC 164; R. v. Rideout 2005 NSSC 4. It was also applied by Seidemann Prov. Ct. Judge in the unreported decision of R. Haines in 2 Feb. 04 (Prince Rupert Registry). No transcript of this case has been made.
Offences – Forfeiture - No abuse of trust per s. 718 Crim Code
R v. Gould , No. 318 (NFLD. Sup.Ct.)
This was a sentencing case involving two brothers who pleaded guilty of unlawful possession of salmon. Both brothers were fined $1,000 dollars. In the court also ordered the forfeiture of the boat owned by one brother with a value of $12,000 dollars.
Upon appeal, the court set aside the forfeiture of the vessel and substituted an additional fine of $500 dollars on the boat owner. His reasons were as follows:
1. The discretionary power to forfeit given to the court by section 72.1 of the Fisheries Act should be exercised with regard to the general principles of sentencing set out in section 718 of the Criminal Code;.
2. The reference to "abuse of a position of trust" in section 718.2(a)(iii) of the Criminal Code was not meant to apply to a fisher misusing a commercial fishing licence;
3. By focusing too much on the issue of deterrence, the judge overlooked the principle that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The judge also overlooked the requirement of consistency.
4. Forfeiture without reference to other principles can also lead to inequities resulting from offenders using valuable equipment receiving a larger penalty than others.
Offences - Sentencing - Relief from forfeiture of property owned by innocent third parties -
Greening v. Canada (Ministry of Fisheries and Oceans), 1997 CanLII 14717
This case involved an application for relief from forfeiture pursuant to section 75 (4) of the Fisheries Act which provides as follows:
75. (4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,
(a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and
(b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lien holder, that he exercised such care with respect to the mortgagor or the lien giver, the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.
This case involved a Father and son who lived in an area where illegal ice fishing was very prevalent. A Father regularly borrowed his son's snow mobile for the purpose of working on his son's log home, but had a blanket permission to use the machine when he wished to. He took the machine on the morning he was charged without asking and before his son was out of bed. He gave evidence that he did not ask his son for permission to use the snow mobile for illegal fishing because he knew his son would refuse such permission.
The decision examined two lines of authority as to the duty of a bailee of goods under provisions such as section 75(4) of the Fisheries Act. These two lines were summarized by Cameron J.A. in his dissent as follows:
the one [line of authorities], based on the decision of Fauteux J. in Deputy Minister of National Revenue v. Industrial Acceptance Corporation Limited, (1958), 15 D.L.R. (2d) 369 which has been generally interpreted to require, in every case, that the bailor make some positive and specific inquiry as to whether there are reasons to suspect likelihood of activity contrary to the Act with the circumstances determining the nature of the inquiry; and the other, illustrated by the decisions of Justice Green in Doyle v. Minister of National Revenue (1993), 106 Nfld & P.E.I.R. 53 and Coombs v. Minister of National Revenue (1992), 102 Nfld & P.E.I.R. 23, which hold that the circumstances dictate not the nature of the inquiry but whether such an inquiry need be made.
All of the members of the court chose the second line of authorities to the effect that the circumstances dictate whether or not a positive enquiry is required. The Majority decision of Green J.A. concurred in by Marshall J.A. found on the facts of the case that a positive enquiry was not required. Cameron J.A. in dissent, disagreed and would have imposed a positive duty to warn against illegal use.
With respect to the scope of the duty, Cameron J. suggested that in the absence of a prior history of fishing contrary to legislation, obtaining an "undertaking by an ostensibly honest bailee would meet the test". However, if the bailee had a history of previous convictions, such an undertaking might merely be "paying lip service to form."
Post script (16 June 04): See also Hurley v. Canada 2003 NLSCTD 178
Offences - Sentencing - Forfeiture of gear under s. 72 (2) of the Fisheries Act
R v. Hallohan , N.J. No. 279 (NFLD. S.C.)
This case involved a fisher charged with recreational fishing for ground fish during a closed time. He was caught with 12 fish, was a first time offender, was not commercially trafficking in cod and plead guilty the first time the matter was brought before the court.
The sentencing judge imposed a fine of $500 dollars and ordered forfeiture of his boat and engine which was worth $10,000 dollars. In imposing the sentence, he referred to snow mobilers who lose their snow mobiles when convicted of illegal ice fishing. He said "you are no different from anybody else"
On appeal, the appeal court referred to the fact that section 72 (2) of the Act is discretionary. Mr. Justice Easton said as follows:
If the court feels after it has settled on an appropriate punishment that additional measures should in this circumstances be employed, then forfeiture may be ordered. It is important, in my view, to recognize, however, that forfeiture under the Act is always in addition to previously decided upon punishment, whatever form it may take.
Given the fact that the sentencing judge indicated that all persons are to be treated alike, and gave no reasons for the forfeiture, the court assumed that he failed to exercise his discretion. Accordingly, it set aside the forfeiture and increased the fine from $500 dollars to $1,000 dollars.
This case contains a useful review of the principles of sentencing and the factors to be considered by an appeal court when reviewing a sentencing decision.
Counsel for the Crown: J
Counsel for the Accused: