This case involved a fisherman convicted under section 13(1) (c) of the Atlantic Fishing Regulations of permitting his crew to haul previously set lobster traps without him (the licence holder) being aboard the vessel. Upon sentencing, the trial judge refused to apply the mandatory forfeiture provisions of section 72(1) of the Fisheries Act to the proceeds of sale of the lobster catch. Upon a summary conviction appeal, the Supreme Court overturned the trial decision and ordered forfeiture. Upon further appeal to the Nova Scotia Court of Appeal, the decision of the trial judge was restored.
The reasons of the court for declining to apply s. 72(2) were as follows:
following the decision of R. v. Morash (1994), 129 N.S.R. (2d) 34, the fisheries officers did not have reasonable grounds to seize the lobster because the offence did not relate to the catching of fish but to the granting of permission to use a vessel in fishing.
Even if the initial seizure could be justified under s, 51 of the Fisheries Act, the test for mandatory forfeiture under s. 72(2) is whether a person is convicted of an offence that "relates to fish seized." That is, where the fish is a necessary element of the offence.
In this case, fish in the form of lobsters, did not enter the picture until all of the elements of the offence were in place.
Section 72(2) appears to be intended to apply most obviously to "catching" offences, such as taking or keeping fish of the wrong species or the wrong quantity or in the wrong place at the wrong time with the wrong gear rather than licensing offences such as who can own and operate a vessel.
Correct interpretation did not detract from enforcement, because if fish are caught in situations of flagrancy, the court still has the discretion under section 71(1) to order forfeiture.
Editor’s note (14 March 05): This case has been applied in: R. v. Paul [2003] N.S.J. No. 295, 2003 NSSC 164; R. v. Rideout 2005 NSSC 4. It was also applied by Seidemann Prov. Ct. Judge in the unreported decision of R. Haines in 2 Feb. 04 (Prince Rupert Registry). No transcript of this case has been made.