This case involved charges of fishing during a closed time against 40 commercial fishermen who were protesting the refusal of the Department of Fisheries and Oceans (“D.F.O.”) to open the fishery. At a sentencing hearing, the court extensively reviewed the evidence regarding the extremely large run size and the inequities surrounding the Aboriginal Pilot Sales fishery that was allowed to fish ahead of the commercial fishery.Upon completion of this review of the evidence, the court granted an absolute discharge.
Upon being appealed by the Crown, the court indicated that although some of the trial court’s comments regarding the aboriginal fishing strategy were unnecessary, given that this was a protest fishery with advance notice being given to the authorities, no risk of the actions being repeated by the offenders and the co-operation of the offenders with the authorities, the absolute discharges were upheld.