Section 71(2) of the Fisheries Act provides that “. . . a court may order any . . . thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount satisfactory to the Minister.” In this case, the owner of two seized prawn fishing vessels brought an application in B.C. Provincial Court for return of its vessels upon the posting of security. In support of its application it filed copies of valuation surveys of the fishing vessels. However, the Crown refused to “entertain any form or amount of security” for release of the vessels. It submitted the proper remedy for the applicant was an action in the Supreme Court based upon replevin or a Charter remedy. Unfortunately for the applicant, the court ruled that as a court of statutory jurisdiction, it could not substitute its view of what would be an acceptable form and amount of security in the absence of any suggestion by the Minister. The Court did, however, make some non-binding (obiter dictum) comments. It said:
The court has a discretion which should be exercised on judicial grounds. If the Minister can persuade the court that the circumstances are such that it would truly bring the administration of justice into disrepute, then such an order would not be made, but it is for the court to make that determination, not the Minister. Otherwise, there is no need for the court to ever be involved. It is only the Minister who can make the decision (para. 23).
It is my view that, to interpret this section in the manner the Crown seeks . . . would be in violation of the Charter. It permits the Minister to act arbitrarily for items, which may be lawfully seized for a very minor offence, to be withheld without any recourse. This clearly is not the way this section is intended to act (para. 24).
1) See the subsequent companion B.C. Supreme Court case of McNeill Fishing Ltd. v. Canada, 2017 BCSC 1598 where the Court dismissed McNeill Fishing Ltd.’s interlocutory application for replevin on the grounds that the applicant had not established irreparable harm because its loss of profits could be compensated by damages.
2) Based upon recommendations from the Canadian Maritime Law Association, when the Government of Canada tabled Bill C-32 in 2007 for a broad amendment of the Fisheries Act, it proposed amendments to s. 71(2) that would have given the court the authority to determine the security to be posted for release. Unfortunately, this Bill died on the order paper.