ENFORCEMENT 213 



ment laboratories have been used to test samples pro- 

 vided by interested citizens, and on both occasions the 

 results led to successful prosecutions. In several other 

 cases, citizens have laid private informations under the 

 Act and either pursued them successfully themselves or 

 convinced Department of Justice prosecutors to take over 

 the prosecutions. 



While the Department claims it is willing to cooperate 

 with citizens having well-documented cases, some partici- 

 pants at the Commission's hearings stated that the 

 reverse is true and that government laboratories do not 

 accept samples for testing from citizens. Judging from the 

 small number of cases citizens have been involved with 

 thus far, it appears that, if the Department had fears of 

 becoming an accomplice to strident vigilante groups, 

 those fears are unfounded. Citizens have generally pro- 

 vided valuable information and assistance and should be 

 encouraged to continue to do so. 



13. The biological laboratories of the federal government 

 in the Pacific region should accept and test properly 

 collected samples presented by citizeas, and the 

 Department of Justice should be available to assist 

 with legal proceedings. 



The Courts 



Virtually all prosecutions under the Fisheries Act and 

 regulations take place in the Provincial Court of British 

 Columbia. Because most cases heard in that court deal 

 with charges laid under the Criminal Code, a provincial 

 court judge may be inclined to treat a fisheries charge as 

 relatively unimportant compared to the other criminal 

 matters he regularly hears. 



The judiciary must be fully educated about the threats 

 facing the fishery resource as a result of illegal fishing 

 activity and habitat destruction. The judiciary can be 

 educated in two ways. First, effective Crown counsel can 

 teach judges a great deal about the resource and the 

 threats facing it by eliciting evidence from knowledgeable 

 witnesses and making full submissions. Implementating 

 the recommendations made earlier in this chapter con- 

 cerning the appointment of knowledgeable prosecutors 

 should assist here. Second, the judicial conferences held 

 for the ongoing education of provincial court judges 

 could be a medium for disseminating relevant informa- 

 tion. Recently, a professor in environmental law pre- 

 sented a paper on the habitat protection sections of the 

 Fisheries Act to a group of judges at such a conference.'' 

 This is an encouraging sign that the provincial court 

 judges in British Columbia are becoming increasingly 

 aware of their obligations to the fisheries resource and 

 this trend should continue. 



14. The education of the judiciary in fisheries law and 

 policy should be encouraged through the appropriate 

 channels of the provincial court system. 



PENALTIES 



The Fisheries Act, regulations and licences are 

 enforced through fines, jail sentences, the seizure and for- 

 feiture of illegally caught fish and equipment used to 

 commit the offence, and the suspension and cancellation 

 of fishing licences. To complement a more effective 

 detection and apprehension capability and an improved 

 prosecution process, these sanctions must serve as 

 effective deterrents. 



Fines 



Table 16-5 sets out the pattern of penalties for various 

 infractions under the Act. Most offences involving illegal 

 activities are covered by the general penalty provision in 

 section 61, which sets a maximum $5,000 fine but no 

 minimum level. However, as Table 16-4 indicates, the 

 levels of fines imposed by the courts have tended toward 

 the lower end of this range. In the last four years more 

 than 90 percent of convictions have resulted in fines of 

 less than $500 or in no fines at all. 



Table 16-4 Penalties imposed under the Fisheries Act 



1978 1979 1980 1981 



numbef pgioil numter perctnt nimber ptntnl number percoK 



Source: Department of Fisheries and Oceans. 



The current scheme of financial penalties under the 

 Fisheries Act is replete with ambiguities, inconsistencies 

 and anachronisms. For example — 



i) Section 38 of the Act, which deals with the obstruc- 

 tion of fishery officers in the execution of their 

 duties, stipulates a penalty on summary conviction 

 of a fine of up to $100 or imprisoiunent of up to six 

 months, incredibly, with hard labour. The latter has 

 had no place in Canadian penal law for decades 

 and, in any event, is completely misplaced as a pen- 

 alty for an offence which merits a fine of only $ 100. 



ii) The penalty for failing to remove obstructions from 

 streams or provide a sufficient fiow of water over a 

 spillway after three days' notice defies comprehen- 

 sion. It states that an oflTender "is liable to a penalty 

 of not less than $4.00 and not more than $20.00 for 



