IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Rideout, 2003 NSPC038
Date: July 9, 2003
Case #: 1093698
Registry: Sydney
Between:
R.
v.
Rickey Kenneth Rideout
Judge: The Honourable Judge A.P. Ross
Heard: Decision rendered in writing July 9, 2003, in Sydney, Nova Scotia
Counsel: Mr. Matthew Ryan, for the Crown
Mr. William Burchell, for the Defence
[1] Mr. Rideout, the defendant, has been found guilty of contravening a condition of his license, by fishing in a division or subdivision other than area 23D, contrary to the Fishery (General) Regulations, thereby committing an offence under Section 78 of the Fisheries Act of Canada. Reasons for decision were filed March 18, 2003, and are reported at [2003] NSJ No.100 (QL). Subsequently, the Court heard submissions from Crown and Defence as to the appropriate sentence. In particular, I heard argument about whether the Court was required to order forfeiture of the proceeds of the Defendant’s catch under Section 72(2) of the Fisheries Act. The amount at stake is $35,362.25.
[2] The Court is called upon to consider, with reference to the statute and case law, distinctions between Section 72(2) and its sibling, Section 72(1) and then to apply the provisions, as interpreted, to the facts of the present case.
[3] The forfeiture provisions of the Fisheries Act were considered in R. v. Morash , (1994) 129 NSR (2d) 34; [1994] NSJ No. 53 (QL)(NSCA), where the Defendant was convicted of fishing with a gill net in an area closed to gill net fishing. The actual activity found to constitute fishing was, applying the broad definition from the notorious case Frederick Gerring Jr., the extension of a gill net from the stern of the vessel in the closed area. Although fifteen thousand pounds of fish were found aboard, there was no direct evidence that these were caught by the gill netting method, nor from any activity in the closed area. The repeated references in the judgement to the absence of evidence that fish were caught in a closed area seem to suggest that if the converse were true, i.e. if the fish were caught in a closed area, the outcome would have been different and forfeiture imposed.
[4] Morash does not discuss differences between Sections 72(1) and 72(2). Indeed, it appears to identify an equivalency between the two, at least for the purposes of that case. At paragraph 21 the Court states that Section 72(2) did not have application as “it cannot be said that the conviction relates to the fish seized... Likewise, Section 72(1) does not have application in that there is no evidence that the fish seized related to the offence...”
[5] In Morash it appears the area per se was closed to gill netting. In the present case, crab fishing area 24 was not open to Mr. Rideout, but was open to others using the same fishing method. This may lend some support to the Defendant’s argument that the offence for which he was convicted was basically a licensing offence. Mr. Rideout, it will be remembered, was authorized by a condition of license to fish only in CFA 23D. In essence he was, as a displaced ground fisher, given a temporary crab allocation in a particular area. The contention that an offence might be a so called “licensing offence” and thus not attract mandatory forfeiture received some attention in R v. Mood [1999] NSJ No. 59 (QL); 174 NSR (23d) 292 (NSCA), to which I will turn subsequently in these reasons.
[6] For its part, the Crown contends that the central issue in the present case is the conservation issue. It might be said that nearly all violations of the Fisheries Act are connected to conservation concerns, directly or indirectly, including offences under the licensing provisions. Here, the connection to conservation seems more immediate than in Mood, where the only thing wrong with the fishing operation was the absence of the captain aboard the vessel, or a proper designation of the crew to operate the license. In Mr. Rideout’s case, while he might have caught as many crab legally in area 23D as he in fact caught in area 24 on the date in question, his actual catch constituted additional pressure on the stock in CFA 24 over and above what DFO was prepared to allow.
[7] I proceed now to a closer consideration of Section 72 of the Fisheries Act, in light of the Mood decision. For ease of reference, the relevant provisions are reproduced here.
72.(1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that any thing seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from its disposition, be forfeited to Her Majesty.
72.(2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall, in addition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.
51. A fishery officer or fishery guardian may seize any fishing vessel, vehicle, fish or other thing that the officer or guardian believes on reasonable grounds was obtained by or used in the commission of an offence under this Act or will afford evidence of an offence under this Act, including any fish that the officer or guardian believes on reasonable grounds (a) was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations; or (b) has been intermixed with fish referred to in paragraph (a).
[8] On the facts of the present case, it is clear that the fish were caught during or at the same time as the commission of the offence (the violation of the license condition). It would thus appear that the fishery officer who seized the catch had reasonable grounds to believe that the crab “was caught...in contravention of this Act or the Regulations”. It thus appears, in turn, that the crab were “fish seized pursuant to paragraph 51(a)” as set out in s. 72(2) and, by extension, “seized under this Act” as worded in Section 72(1). However, a consideration of Mood leads me to conclude that although the fish seized from Mr. Rideout fall under Section 51(a) this in itself is not determinative of the issue of forfeiture. For one thing, the words “relates” and “in relation to” do not appear in Section 51. At paragraph 15, the Court in Mood states “the broad powers of seizure in that provision (Section 51) should not be confused with the corresponding requirement for forfeiture”. From Mood it is clear that the interpretation of Section 72(1) and (2) does not flow from the wording or mirror the meaning of Section 51 or 51(a).
[9] Sections 72(1) and 72(2) are in some respects similar, despite obvious differences. From a reading of Mood, it is clear that “thing” in subsection (1) includes “fish” in subsection (2), for the Court there stated “both Section 72(1) and 72(2) can result in the forfeiture of fish”. In the circumstances of the present case, “thing” and “fish” may be read as meaning the same thing. As noted above, the fish here were seized pursuant to the powers given a fishery officer under Section 51(a) of the Act, and thus, in the circumstances of this case, the terms “seized pursuant to paragraph 51(a)” and “seized under this Act” are also equivalent terms.
[10] The aspect of the subsections most relevant to the case at hand are the words which concern the relationship of the thing/fish to the offence, or vice versa. In 72(1) the relevant words appear as follows - “thing...in relation to which the offence was committed...be forfeited”. In Section 72(2), the relevant words appear as follows: “offence...that relates to fish seized...be forfeited”. While grammatically the order of terms is reversed, logically they assert the same proposition. In any event, where a relationship, as here, is stated in such general terms, there is no reason to suppose that it changes with the order of the words used to express it. From this consideration alone, there appears to be no reason to give a different meaning to this aspect of the two subsections. Looked at in this way, it could seem that precisely the same requirement or threshold must exist for the exercise of the discretionary power in subsection (1) as for the use of the mandatory power in subsection (2). However, the judgement in Mood directs a different interpretation for subsections (1) and (2). It states, at paragraph 17
The correct interpretation does not detract from enforcement efforts. If fish are caught in circumstances of flagrancy that makes it just they should be forfeited, even though they are not a necessary element of the offence under the Fisheries Act for which a person is convicted, the Court has discretion to order them seized as a “thing” under Section 72(1). Both Sections 72(1) and 72(2) can result in the forfeiture of fish. Forfeiture is mandatory under Section 72(2) if the offence relates to fish if it is an offence that could not be committed without catching them. However, if the fish seized under Section 51 are merely incidental to, or connected with the offence, the Court is not bound by statute to order them forfeited, but it has discretion to order forfeiture under Section 72(1) if the circumstances warrant it.
[11] Our Court of Appeal has thus determined, on bases beyond strict logic and grammar, that it is proper and just to construe the mandatory forfeiture provision in Section 72(2) quite strictly and narrowly, while preserving greater judicial latitude in the use of Section 72(1).
[12] It thus appears from case authority that it is not enough merely that fish were caught while an offence was being committed for the mandatory forfeiture provision to apply. Rather, it is necessary to give strict application to the requirement that the offence “could not be committed without catching them”. In the present case, as in Morash, Mood and many other cases, it is clear that the actual catching of fish is not an essential element of the offence. Under the definition in the Frederick Gerring Jr. case, Mr. Rideout would have been convicted of this offence had he been charged the moment he deployed his traps at the location, without a single crustacean in them.
[13] A distinction has been drawn between “catching offences” and “licensing offences”. In Mood the following passage appears
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 the present one which govern who can own and operate fishing boats.
[14] It will be remembered that Mr. Mood was charged with the offence of being an owner who permitted another person, not named in his license, to use his vessel. In the case of Mr. Rideout, the distinction is not so neat. As noted above, DFO chose to use conditions of license to regulate fishing of the crab stock. However, while the distinction may not be quite so clear, nor significant, it is worth noting that the charge against Mr. Rideout is one of violating a license condition. As I said in the reasons for decision “for the purposes of this case, Areas 23A through D appear to come into existence, as a matter of fact and law, by virtue of the license condition issued to Mr. Rideout. There is some evidence that other displaced ground fishermen were given crab fishing licenses based on a similar definition of areas”. While Mr. Rideout was in the “wrong place”, he was not fishing a species which was unlawful to catch per se. The crab were not alleged to be undersized. They were not taken from an area that was closed altogether. They were not caught by a method that was absolutely prohibited.
[15] For the foregoing reasons, I am led to conclude that the mandatory forfeiture provision of Section 72(2) does not apply in the present case. I will thus proceed to a consideration of a possible discretionary forfeiture under Section 72(1).
[16] Given that forfeiture is a part of the sentencing process, I am mindful of the general principles enunciated in the Criminal Code which include that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. I will also consider (though not as any sort of prerequisite) whether, in the words of Mood, the fish were “caught in circumstances of flagrancy that makes it just they should be forfeited.” As well, I have heard the concern voiced strenuously by the Crown that the offence here involved a violation of conservation principles requiring deterrence to Mr. Rideout and others. I am also mindful of the possibility of partial forfeiture, authority for which emerges in R. v. Smith and Whiteway Fisheries Limited [1994] NSJ No. 362 (QL) wherein an order of the Summary Appeal Court Judge for partial forfeiture of the catch ($30,000.00 from a total of $58,000.00) was not disturbed by our Court of Appeal.
[17] In terms of the impact on the resource, there is certainly a significant amount of crab involved in this offence, and hence in this determination. The weigh out was slightly more than twenty thousand pounds. The proceeds, being held in abeyance of this decision are in excess of $35,000.00.
[18] My earlier reasons for decision deal extensively with the circumstances surrounding the offence and provide a basis for an assessment of the degree of flagrancy. I concluded that there was an evidenciary basis for an honest belief in the lawfulness of his actions, although the Defendant failed to establish that the belief was also reasonable. While Mr. Rideout did not take all reasonable steps to avoid commission of the offence, neither did he take any obvious measures to hide his activity. His hail of nineteen thousand pounds was reasonably accurate. He showed no attempt to hide or misrepresent the location of fishing so as to make it appear that he was in Area 23D when in fact he was not. His vessel was equipped with electronic monitoring permitting DFO to know his location at all times. He appeared genuinely surprised when advised, upon landing, that his traps had been placed outside the area permitted by his license.
[19] In addition to the foregoing factors, defence counsel submitted at the sentencing hearing that Mr. Rideout has incurred significant costs as a result of being charged with this offence. After loading the crab which were later seized, he reset the traps in the same location. Understandably, he was required to remove those traps and dump the catch. He was required to have an observer on board his vessel for this. He incurred crew and fuel costs, in addition to an observer cost of three thousand dollars. While the figure is not substantiated by evidence, counsel has submitted that he has incurred “costs” of one kind or another of fifty thousand dollars. Certainly some of this is owing to Mr. Rideout’s own mistake, but I conclude that whatever the precise amount, or however one might attribute the blame for it, Mr. Rideout has suffered a significant pecuniary loss as a result to being charged. The litigation itself was an extensive process involving numerous court appearances and the assistance of legal counsel. There is inconvenience, cost and deterrent value from these factors alone.
[20] I thus conclude that there ought not to be a forfeiture order made in the present case. I am, however, going to impose a significant monetary penalty. Had I ordered forfeiture, I would have imposed a lesser fine based on the factors noted above, but in recognition of the need to impress upon fishers the duty of utmost care, I impose a fine of $4,000.00 and the usual costs and default time, with the fine payable on or before November 4, 2003.
DATED AT SYDNEY, N.S., this 9th day of July, A.D., 2003.
______________________________________
Judge A. Peter Ross