ENFORCEMENT 215 



In addition to the difficulties presented by such obvi- 

 ous inconsistencies and ambiguities, numerous concerns 

 were expressed at the Commission's hearings about the 

 lack of any meaningful scale of financial penalties in view 

 of the financial rewards of illegal fishing. 



In a recent study, it was estimated that, if there is a 15 

 percent chance that a vessel will be boarded each month, 

 the potential legal penalty (including fine, confiscation 

 and lost fishing time) must be about ten times the value 

 of potential gains from violations over a two-week fishing 

 tnp.'" 



Considerable support was expressed for simply raising 

 the maximum level of fines that a judge may award for 

 offences under the Act. However, the problem with rais- 

 ing the maximum alone is that judges might continue to 

 award penalties in the lower ranges of the sentence. It 

 appears that something more is required to ensure that 

 sentencing will be severe enough to adequately deter 

 offenders. 



In view of these deficiences, I recommend that finan- 

 cial penalties for offences under the Fisheries Act and 

 regulations be reformed, as follows: 



15. The penalty provisioas in the Fisheries Act should be 

 thoroughly reviewed to eliminate all anachronisms, 

 inconsistencies and ambiguities. 



16. For illegal fishing the Act should provide for a higher 

 scale of tines. The maximum fine for commercial vio- 

 lators should be raised from $5,000 tu $10,000. 



17. For all offences that seriously threaten fisheries or 

 habitat the Crown should be able to proceed by way of 

 indictment instead of only summarily as is presently 

 the case for most, and judges should be authorized to 

 impose fines that are higher than the upper limits stip- 

 ulated for summary convictions. 



18. To discourage repeat violators, second and subsequent 

 offences of all kinds should draw high mandator}' min- 

 imum levels of fines, which should vary according to 

 the kind of offence: commercial, sportfishing, pollu- 

 tion, habitat destruction, and so on. 



19. Through its court liaison program and its prosecutors, 

 the Department should systematically review all court 

 decisions and report to the Department of Justice 

 those where sentences are abnormally low and should 

 be appealed to higher courts. 



Seizure and Forfeiture 



Under the Fisheries Act, a fishery officer has the power 

 to seize vessels, vehicles, gear or fish when he has reason- 

 able grounds to believe they have been used in or 

 obtained by an offence under the Act or regulations. 

 Under these procedures, the govenmient may hold the 



seized articles until they are ordered forfeited to the 

 Crown or released to the accused. The Act provides for 

 the return of these items before trial if the accused posts a 

 bond in an amount ordered by the court. Normally, the 

 Crown does not oppose these requests for a bond. If the 

 owner of such items is convicted, the Minister or the con- 

 victing judge, in addition to any other penalty imposed, 

 may order the items to be forfeited to the Crown. 

 Forfeited property is normally sold, and the proceeds are 

 paid into the public treasury. 



Despite a Department policy directive in 1979 urging 

 that seizure be seriously considered for all violations, the 

 powers given under this section are not always exercised. 

 In 1981, of all charges laid, seizures were made in about 

 70 percent of the cases; but for many, only illegally 

 caught fish were seized and not the more valuable vessels 

 and equipment. Forfeitures are limited to seized fish and 

 sometimes to illegal nets or motor vehicles used to trans- 

 port poached fish. 



These powers provide one of the most effective weap- 

 ons against illegal fishing, but they are effective only 

 when vessels or equipment more valuable than the fish 

 are seized. By seizing vessels or equipment on the fishing 

 grounds, a fishery- officer temporarily removes the 

 offender's ability to pursue his livelihood, and provides a 

 dramatic example to those who are tempted to break the 

 law. Ultimate forfeiture has an even greater financial 

 impact on the offender. 



I therefore make the following recommendations: 



20. The Department should pursue an a^:ressive policy in 

 seizing vessels and equipment when offenders are 

 caught and charges are laid. 



21. In flagrant cases, Crown counsel should oppose appli- 

 cations to court by the accused for the release of 

 equipment pending trial. For others, where circum- 

 stances warrant, they should argue for substantial 

 bonds, approximating the market value of the vessel 

 and equipment under seizure. 



22. DIegally caught fish and illegal equipment should be 

 forfeited to the Crown, as at present. 



I see no need for the forfeiture of vessels or legal nets 

 and equipment if the level of fines is increased, as I have 

 recommended earlier. 



Licence Suspension and Cancellation 



The regulations under the Fisheries Act allow the Min- 

 ister to cancel, suspend or refuse to re-issue a commercial 

 licence when its holder has been convicted of illegal 

 fishing. (Under the Act, the Minister may cancel a licence 

 when a provision of the licence itself is violated. But in 

 the Pacific region, at least, this authority is ineffectual 

 because licences do not include terms and conditions 



