R v. Sandover-Sly

In Fish Cases, Forfeiture, Offences on (Updated )

This case involved the poaching of 4,100 abalone weighing 750 pounds with a value of $18,750 at a time when there had been a coast wide moratorium on the harvesting of abalone for approximately eight years. One of the accused plead guilty and was sentenced on a joint submission to a fine of $7,000 and ordered to pay $5,000 compensation and to forfeit his diving gear. Upon conviction of the second accused, the court imposed a fine of $7,000 and granted an order for forfeiture of, amongst other things, a tug and barge valued at $70,000 owned by a company which in turn was owned by the second accused’s father.

Upon appeal, the second accused argued that his penalty offended the principle of parity because when considering the $70,000 value of the tug and barge, it was much higher than that of the co-accused. The Court of Appeal, upheld the forfeiture order for the following reasons:

1. Since the use of the tug and barge was not merely incidental to the commission of the offence, it could be confiscated without regard to the totality of the offence;

2. In this case, forfeiture was appropriate because of the intimate involvement of the barge and tug with the commission of the offence and because this was an “egregious environmental offences against a threatened species” (para 29) which “dealt a staggering blow to the conservation efforts to rehabilitate the industry” (para. 14); and

3. Forfeiture did not offend the principle of parity because the accused did not own the tug and barge.

Editor’s note: In determining whether or not forfeiture ought to be considered as part of the sentence, the court applied a test set out in Thomas, Principles of Sentencing. In the quote cited from Thomas, the text book says, “[t]hese cases may justify the view that where the property is specifically adapted for the commission of the offence, or has no other use to the offender, it may be confiscated without regard to the totality of the other sentence . . .” (para. 26) [emphasis added]. In the peculiar facts of this case, the tug boat had no other use to the offender because he did not own the logging company which owned the boats. However, in the more usual case of a commercial fisherman, the boat would have another use to the offender, namely earning his or her living through commercial fishing.

See also the quote from Thomas where it refers to special hardship being considered by the court and the quote from R. v. Smith, [1978] N.J. No. 10 where it says that it the court can take into consideration forfeiture orders when sentencing.

Although not referred to, this court seems to reject the approach taken by R. v. Gould [1998] N.J. 318 (Nfld. S.C.).