SENTENCING FOR VIOLATIONS OF THE FISHERIES ACT
Fisherman Life January 2005
On November 1, 2004 the Department of Fisheries and Oceans (“DFO”) issued a news release boasting of a sentence imposed by a Provincial Court in Victoria for illegal fishing that included a $25,000 fine, forfeiture of all the fisherman’s gear as well as forfeiture of his pick-up truck (R. v. McQuire). Although no news release has yet been issued by DFO, nine days later a different Provincial Court judge in Vancouver imposed a sentence of only $100 for illegal fishing (R. v. Kapp et al. 2004 BCSC 1503). While at first glance this wide disparity of sentences for illegal fishing seems hard to believe, upon review of both the facts of each case and the relevant principals of sentencing this disparity in fact makes a lot of sense.
The principles and law as they apply to the sentencing of persons convicted of Fisheries Act offences come from both the Fisheries Act and the Criminal Code of Canada. The Criminal Code is a useful starting point because it enunciates the basic principals that a court must apply when sentencing. With respect to the purpose of sentencing, the purpose most frequently referred to in the context of fisheries prosecutions is the object of deterring both the offender and other persons from committing offences. This principle is applied in practise by determining the value of any fish that were caught while fishing illegally and ensuring that any penalties assessed are higher than that value so that the court’s penalties can not be simply viewed as a cost of doing business. Other ancillary purposes that are also sometimes referred to in fisheries sentencing cases are the denunciation of unlawful conduct and reparation.
In pursuing these purposes, the Criminal Code provides that the sentence imposed by a court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is particularly important for fisheries offences because unlike most Criminal Code offences that require proof of intent to commit the prohibited act, Fisheries Act offences do not normally require proof of intent. Under the strict liability regime set out in the Fisheries Act, once the Crown has proved the prohibited act has occurred, the fisherman is presumed guilty unless he can show that he exercised due diligence to avoid committing the offence. Accordingly, fisheries offences cover a broad spectrum of behaviour ranging from deliberate, pre-meditated poaching of an endangered species to the careless failure to properly fill out a log book or mail in a fish slip within the required time for an abundant species.
It is also necessary under the Criminal Code for the court to consider any aggravating or mitigating circumstances. Aggravating circumstances would include previous convictions, pre-meditation, targeting of an endangered or threatened species and a high frequency of the offence being committed in a particular area. With respect to previous convictions, given the fact that one can be convicted of a fisheries offence without proof of intent, it is not uncommon for many career fishermen to have at least one prior conviction. Accordingly, courts should not place too great a weight upon a previous conviction, particularly if it is not recent and is for a different type of fisheries violation. Mitigating circumstances would include conduct which is not deliberate or pre-meditated, remorse, no previous record, co-operation with the authorities, a guilty plea and volunteer activities related to protection of the resource.
The Criminal Code also provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. Ideally, at a sentence hearing the court should be provided with precedents showing the sentences that other courts have imposed in similar circumstances. Unfortunately, since most fisheries sentences are imposed orally, there are few written precedents available to use as precedents. One source of precedents is the press releases posted by DFO to their website. However, it is likely that this site does not include low sentences that DFO is unhappy with. In addition, these press releases are only summaries and often leave out important distinguishing facts. DFO also has its own private sentencing database and will sometimes make a print out from that database available to defence counsel. In addition, defence lawyers who regularly practise in this field often have their own private collection of sentence precedents.
The ability of the offender to pay is also a factor the Criminal Code requires the court to consider. Although it can be embarrassing to display one’s poverty in public, it is definitely an advantage to tell a court that you have a limited ability to pay a fine. The crown will often refer to the gross value of the fish that were being targeted or the average gross income of fisherman in the fishery in question. At minimum, it is useful to bring in the statement of fishing income and expenses from one’s income tax return to show the court all of the expenses deducted from the gross.
addition to the general principles set out in the Criminal Code, the Fisheries
Act also contains a number of specific provisions dealing with sentencing.
These include giving the court the ability to:
(a) impose convictions on corporations, employers and licence holders;
(b) impose additional fines to strip wrongdoers of any monetary benefits from
their crimes; (c) cancel or suspend fishing licences; (d) order forfeiture of
seized boats, gear and fish; (e) prohibit the accused from doing any act; and
(f) impose a payment order (as opposed to a fine) to be used for the purpose of
benefiting fish habitat.
The case of R. v. McGuire, referred to above, involved the poaching of 450 abalone from British Columbia waters where there has been a complete moratorium on abalone fishing of any kind since 1990. Given the fact that abalone are now listed as a threatened species under the Species At Risk Act, the large number of abalone caught, the high value of the abalone and likely other aggravating factors such as pre-meditation, the court imposed a very high monetary penalty of $25,000, forfeiture of the accused’s diving gear, compressor and truck and an order prohibiting the accused from diving for 10 years. The case of R. v. Kapp referred to above, involved nine of approximately 140 fishermen who fished for sockeye salmon in the Fraser River during a closed time to protest the pilot sales project of the Aboriginal Fishing Strategy. As discussed by columnist, Richard Keevil in the November edition of Fisherman Life, as a result of a Crown appeal the Supreme Court of British Columbia convicted these fishermen of fishing during a closed time. At their sentence hearing, although the court declined to grant absolute discharges to the protesting fishermen as the court did in R. v. Anderson 2003 BCPC 0217, it assessed very modest monetary penalties of only $100 per person. This was presumably because it saw the protest nature of the fishery and the relatively small amounts of low value fish caught (10 – 12 salmon caught by Mr. Kapp) as mitigating factors. Even though one of the protestors had previous convictions for fisheries offences, the court did not assess a higher monetary penalty for him because the previous convictions did not arise out of a protest fishery. Pursuant to section 79.2(f) of the Fisheries Act, the court also directed that the monetary penalty be delivered to either the T. Buck Suzuki Environmental Foundation or the Pacific Salmon Foundation. A review of both the facts of these cases and the related principals of sentencing illustrates neatly how the courts can justifiable award such widely different sentences for illegal fishing.
Brad Caldwell is lawyer with the firm of Caldwell & Co. in Vancouver, B.C. His practice is primarily devoted to fisheries, maritime and insurance matters. He can be contacted at 604 689 8894.