This case involved a fisher charged with recreational fishing for ground fish during a closed time. He was caught with 12 fish, was a first time offender, was not commercially trafficking in cod and plead guilty the first time the matter was brought before the court.
The sentencing judge imposed a fine of $500 dollars and ordered forfeiture of his boat and engine which was worth $10,000 dollars. In imposing the sentence, he referred to snow mobilers who lose their snow mobiles when convicted of illegal ice fishing. He said "you are no different from anybody else"
On appeal, the appeal court referred to the fact that section 72 (2) of the Act is discretionary. Mr. Justice Easton said as follows:
If the court feels after it has settled on an appropriate punishment that additional measures should in this circumstances be employed, then forfeiture may be ordered. It is important, in my view, to recognize, however, that forfeiture under the Act is always in addition to previously decided upon punishment, whatever form it may take.
Given the fact that the sentencing judge indicated that all persons are to be treated alike, and gave no reasons for the forfeiture, the court assumed that he failed to exercise his discretion. Accordingly, it set aside the forfeiture and increased the fine from $500 dollars to $1,000 dollars.
This case contains a useful review of the principles of sentencing and the factors to be considered by an appeal court when reviewing a sentencing decision.
Counsel for the Crown: J
Counsel for the Accused: