Xt, ENIORCFMFNT 



to ci>mmercial fishcr\ i)(lciiccs, olhcr areas ol illegal 

 Ushing present strong economic incentives. Illegal fixed 

 gillnets m rivers can pnxliice in a single tla\ a yield of 

 over $>(X), while the cost ot the net varies troni i>iily %M) 

 toSICX). If enforcement eflbrts are to be effective, penal- 

 ties must be high enough to counteract the financial 

 rewards i>f such illegal tishing activity. 



Third, the expanded fishing power places extra pres- 

 sures on the Department's enforcement staff. To counter 

 the excess capacity that has plagued commercial fleets, 

 the Department has reacted with tighter and tighter 

 restrictions on fishing effort. This requires greater and 

 greater enforcement effort, particularly since the financial 

 incentive to resort to illegal activities is strong. 



Fourth, fish habitat is threatened by the increasing size, 

 variety and dispersal of industnal operations, whose ille- 

 gal activities are often ditlicuit to detect. These enter- 

 prises, too, have strong financial incentives to violate the 

 law. 



Finally, the Fisheries Act and the myriad regulations 

 that have emanated from it during the century since its 

 inception present a complex and unwieldy basis for 

 enforcement. The difficulty that fishermen, fishery 

 officers and the courts have in interpreting and applying 

 the legislation further undermines the enforcement effort. 



All of these factors make it difficult for any enforce- 

 ment effort to create a deterrent effect sufficient to com- 

 bat the financial lure of illegal fishing and other unlawful 

 activities. 



If, in addition, the Department fails to recognize these 

 problems and to meet them with strong and highly visible 

 enforcement strategies, the likelihood of illegal activities 

 rises. Thus, the Department must assign a high priority to 

 enforcement if it is to achieve the primary aim of protec- 

 tion and management of the resource. 



ENFORCEMENT PROCEDURES 



The procedures followed to enforce the Fisheries Act 

 and regulations are common to most punitive legislation. 

 Offences may be detected by fishery officers or by other 

 law enforcement officers who, under normal circum- 

 stances, decide whether or not the infraction is serious 

 enough to warrant a charge. Offences observed and 

 reported by members of the public may also result in 

 charges. 



If a charge is laid, the accused is required to appear in 

 court and plead either guilty or not guilty. Where a plea 

 of not guilty is entered, a lawyer representing the Depart- 

 ment is required to try the accused, produce evidence in 

 court and satisfy the judge, beyond a reasonable doubt, 

 that the accused conmiitted the offence. If he is unable to, 

 the accused is acquitted. But if the accused pleads guilty. 



or if the judge convicts hiiii on the basis of the evidence, 

 the judge sets a penalty, which is specified, to some 

 degree at least, in the F'ishcries Act. F'or most offences the 

 judge has a broad range ofcliscretion to levy a tine up to 

 some maximum level, depending on the nature of the 

 offence. When a fine is levied, the offence is entered in 

 the criminal record of the offender. 



Alternatively, the judge may choose one of three other 

 remedies. He may release the offender without penalty or 

 a criminal record by granting him an aKsolute discharge. 

 He may give the offender a conditional discharge and put 

 him on probation only; if the offender completes the pro- 

 bation period successfully he will have no criminal record 

 and no fine. Or else the judge may give him a suspended 

 .sentence and place him on probation. The offender will 

 have a criminal record, but if he completes the probation 

 successfully he faces no further consequences. If he 

 breaches probation, he may be brought back before the 

 .sentencing judge, who may impose a more serious pen- 

 alty. 



The court rules followed for most offences under the 

 Fisheries Act are characterized as summary conviction 

 procedures. These are always tried before a provincial 

 court judge and, in sentencing an accused on conviction, 

 the judge may not impose a fine that is higher than a 

 maximum set out under the Act. Under sections 31(3) 

 (habitat protection) and 38 (obstructing a fishery officer), 

 the Crown prosecutor may elect to "proceed by way of 

 indictment" instead of trying the case according to the 

 usual summary conviction procedures. This has two 

 effects: the accused may be tried before a superior court 

 if he wishes; and, if he is convicted, the judge may impose 

 a higher fine than is stipulated in the legislation for sum- 

 mary convictions. By electing this procedure, the Crown 

 incidentally alerts the judge to the seriousness with which 

 the Crown views the offence and this, in itself can 

 prompt him to impose stiffer penalties. 



This, then, is the procedural framework within which 

 the Fisheries Act and regulations are enforced. In the rest 

 of this chapter, the issues will be explored and recom- 

 mendations advanced in three broad areas that corre- 

 spond to this framework: detection and apprehension of 

 offenders, prosecution in the courts, and penalties. 



DETECnON AND APPREHENSION 



The performance of the Department of Fisheries and 

 Oceans in detecting and apprehending offenders is 

 difficult to assess. The incidence of violations under the 

 Fisheries Act and regulations and their associated costs 

 cannot be determined accurately because not all of them 

 are observed and reported.'' 



As a result, my proposals in this area are confined to 

 the organization of the enforcement effort and associated 



