The federal and provincial governments have established a complex regulatory scheme to govern the fishing industry in Atlantic Canada and elsewhere.
The principal statute governing the industry is the Fisheries Act. Under the Act, the federal government has created more than two dozen sets of regulations.
The Minister of the Department of Fisheries and Oceans (DFO) has a wide-ranging discretion to issue and renew fishing licences and impose conditions on those licenses. Licenses often contain extensive conditions which outline, among other things, where a fisher can fish, at what time, and detailed prescriptions about the size and shape of species which may be caught. The most common form of fisheries offences involve violations of license conditions.
A final layer of complexity pertains to aboriginal people and their traditional and treaty rights which are protected by s. 35 of the Charter of Rights and Freedoms. Aboriginal individuals may assert certain rights with respect to the fisheries, and Bands may negotiate arrangements for band members with DFO. This is a developing area of law in which certain questions remain unanswered by governments and the courts.
In short, the fishing industry is highly regulated and those regulations are complex and evolving. Even well intentioned and careful fishers can find themselves on the wrong side of their licence conditions or newly issued regulations.
Fisheries officers have wide-ranging powers to inspect and investigate whether industry participants are complying with their licences and the regulatory framework. Obstruction of a fisheries officer can be a serious offence. Like police officers, fisheries officers detaining or arresting fishers for alleged offences, must comply with the Charter of Rights and Freedoms. Often the most important rights protected by the Charter in this kind of situation are the right to silence and the right to counsel. Individuals who have been arrested or detained are not obliged to provide information to fisheries officers which may serve to incriminate them. In this kind of situation, it is important to seek legal advice as soon as possible.
The regulatory framework creates a wide range of penalties for those who are convicted or who plead guilty. These include fines, forfeiture of boats and/or gear, and license suspensions. For the most serious offences, jail time and/or license revocation are possibilities. Penalties are imposed by a judge either after a plea deal is reached between an accused and the Crown, or after a trial has occurred and the defendant is convicted.
DFO can hold seized property pending the disposition of charges. Seized property must be returned within 90 days if no charges are filed.
Fisheries offences are regulatory offences. The Crown must prove its case beyond a reasonable doubt, but it does not need to prove that the fisher intended to commit the illegal act. If you are charged, you have the right to know what evidence the Crown will use against you. The Crown will provide disclosure to you which will usually contain a narrative of what the Crown says it will prove and the evidence which the Crown will rely on at trial. It is important to review this evidence before deciding how to plead to the charges.
Ignorance of the law is not a defence to a fisheries offence. However, the Fisheries Act codifies certain defences which can be useful when dealing with such a complex regulatory regime. These include the defence of “due diligence”. Proving this defence requires the defendant to show that he or she took the kind of reasonable care which someone would normally have taken in the circumstances. The illegal act may have occurred, but the defendant took reasonable steps to avoid it and therefore is not guilty.
If you have questions about fisheries offences in the Atlantic Region or would like to seek legal advice, please contact us.
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