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Fisheries Act, Part Six
OFFENCE AND PUNISHMENT
Punishment not otherwise provided for
78. Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of
(a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or
(b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.
R.S., 1985, c. F-14, s. 78; 1991, c. 1, s. 24.
Continuing offences
78.1 Where any contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separate offence for each day on which the contravention is committed or continued.
1991, c. 1, s. 24.
Offences by corporate officers, etc.
78.2 Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.
1991, c. 1, s. 24.
Offences by employers
78.3 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.
1991, c. 1, s. 24.
Offences by licence holders
78.4 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person in respect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations, whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.
1991, c. 1, s. 24.
Burden of proving licence
78.5 In any prosecution for an offence under this Act, where a question arises as to whether a person was issued a licence, the burden is on the person to establish that the licence was issued.
1991, c. 1, s. 24.
Due diligence defence
78.6 No person shall be convicted of an offence under this Act if the person establishes that the person
(a) exercised all due diligence to prevent the commission of the offence; or
(b) reasonably and honestly believed in the existence of facts that, if true, would render the person's conduct innocent.
1991, c. 1, s. 24.
Additional fine
79. Where a person is convicted of an offence under this Act and the court is satisfied that as a result of committing the offence the person acquired monetary benefits or monetary benefits accrued to the person, the court may, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, order the person to pay an additional fine in an amount equal to the court's finding of the amount of those monetary benefits.
R.S., 1985, c. F-14, s. 79; 1991, c. 1, s. 24.
Lease or licence cancelled, etc.
79.1 Where a person is convicted of an offence under this Act in respect of any matter relating to any operations under a lease or licence issued pursuant to this Act or the regulations, in addition to any punishment imposed, the court may, by order,
(a) cancel the lease or licence or suspend it for any period the court considers appropriate; and
(b) prohibit the person to whom the lease or licence was issued from applying for any new lease or licence under this Act during any period the court considers appropriate.
R.S., 1985, c. 31 (1st Supp.), s. 97; 1991, c. 1, s. 24.
Orders of court
79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the following prohibitions, directions or requirements:
(a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence;
(c) directing the person to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence;
(d) directing the person to pay the Minister an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the commission of the offence;
(e) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order;
(f) directing the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat;
(g) directing the person to post a bond or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;
(h) directing the person to submit to the Minister, on application by the Minister within three years after the date of the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances; and
(i) requiring the person to comply with any other conditions that the court considers appropriate for securing the person's good conduct and for preventing the person from repeating the offence or committing other offences under this Act.
1991, c. 1, s. 24.
Suspended sentence
79.3 (1) Where a person is convicted of an offence under this Act and the court suspends the passing of sentence pursuant to paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order directing the person to comply with any prohibition, direction or requirement mentioned in section 79.2.
Imposition of sentence
(2) Where a person whose sentence has been suspended fails to comply with an order made under subsection (1) or is convicted, within three years after the day on which the order was made, of another offence under this Act, the court may, on the application of the Attorney General, impose any sentence that could have been imposed if the passing of sentence had not been suspended.
1991, c. 1, s. 24; 1995, c. 22, s. 17.
Debt due to Her Majesty
79.4 (1) Where the court makes an order under section 79.2 or 79.3 directing a person to pay an amount of money as compensation or for any other purpose, the amount and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.
Publication
(2) Where a person fails to comply with an order made under section 79.2 or 79.3 directing the person to publish the facts relating to the commission of an offence, the Minister may publish those facts and recover the costs of publication from the person.
Idem
(3) Where the Minister incurs publication costs under subsection (2), the amount of the costs and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction.
1991, c. 1, s. 24.
Variation of orders
79.5 (1) A court that has made an order under section 79.2 or 79.3 may, on application by the Attorney General or the person to whom the order applies, require the person to appear before it and, after hearing the person and the Attorney General, vary the order in any of the following ways that the court considers appropriate because of a change in the circumstances of the person since the order was made:
(a) change the order or any prohibition, direction or requirement mentioned in the order;
(b) relieve the person, either absolutely or partially and for any period that the court considers appropriate, of compliance with any prohibition, direction or requirement mentioned in the order; or
(c) extend or decrease the period during which the order shall remain in force.
Limitation
(2) Where an application has been heard by a court under subsection (1), no other application may be made in respect of the same order except with leave of the court.
1991, c. 1, s. 24.
Offence and punishment
79.6 Every person convicted of an offence under this Act who subsequently contravenes an order made under section 79.2 or 79.3 is guilty of
(a) an offence punishable on summary conviction and liable to a punishment not exceeding the maximum punishment to which a person is liable on summary conviction for the original offence; or
(b) an indictable offence and liable to a punishment not exceeding the maximum punishment to which a person is liable on conviction on indictment for the original offence.
1991, c. 1, s. 24.
TICKETABLE OFFENCES
Procedure
79.7 (1) In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any offence prescribed by regulation may be commenced by a fishery officer, fishery guardian or inspector
(a) completing a ticket that consists of a summons portion and an information portion;
(b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused's latest known address; and
(c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as practicable after the summons portion has been delivered or mailed.
Content of ticket
(2) The summons and information portions of a ticket shall
(a) set out a description of the offence and the time and place of its alleged commission;
(b) include a statement, signed by the fishery officer, fishery guardian or inspector who completes the ticket, that the officer, guardian or inspector, as the case may be, has reasonable grounds to believe that the accused committed the offence;
(c) set out the amount of the fine prescribed by regulation for the offence and the manner in which and period within which it may be paid;
(d) include a statement that if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and
(e) include a statement that if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court and at the time set out in the ticket.
Notice of forfeiture
(3) Where any fish or other thing is seized under this Act and proceedings relating to the fish or thing are commenced by way of the ticketing procedure described in subsection (1), the fishery officer, fishery guardian or inspector who completes the ticket shall give written notice to the accused that if the accused pays the fine prescribed by regulation within the period set out in the ticket, the fish or thing, or any proceeds realized from its disposition, shall thereupon be forfeited to Her Majesty.
Consequences of payment
(4) Where an accused to whom the summons portion of a ticket is delivered or mailed pays the fine prescribed by regulation within the period set out in the ticket,
(a) the payment constitutes a plea of guilty to the offence described in the ticket and a conviction shall be entered against the accused and no further action shall be taken against the accused in respect of that offence; and
(b) notwithstanding sections 71 to 77, any fish or other thing seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, are forfeited to Her Majesty and may be disposed of as the Minister directs.
Regulations
(5) The Governor in Council may make regulations prescribing
(a) offences under this Act to which this section applies and the manner in which those offences may be described in tickets; and
(b) the amount of the fine for a prescribed offence, which amount shall not exceed one thousand dollars.
1991, c. 1, s. 24.
JOINT LIABILITY
Who shall be liable
80. Unless otherwise specified, every proprietor, owner, agent, tenant, occupier, partner or person actually in charge, either as occupant or servant, shall be deemed to be jointly and severally liable for any penalties or moneys recovered under any provision of this Act or the regulations.
R.S., c. F-14, s. 62.
81. [Repealed, 1991, c. 1, s. 25]
LIMITATION OF SUITS
Limitation period
82. (1) Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within but not later than two years after the time when the Minister became aware of the subject-matter of the proceedings.
Minister's certificate
(2) A document purporting to have been issued by the Minister, certifying the day on which the Minister became aware of the subject-matter of any proceedings, is admissible in evidence without proof of the signature or of the official character of the person appearing to have signed the document and, in the absence of any evidence to the contrary, is proof of the matter asserted in it.
R.S., 1985, c. F-14, s. 82; 1991, c. 1, s. 26.
FORM OF PROCEDURE
Form of procedure
83. Except as otherwise provided in this Act, all penalties and forfeitures incurred under this Act or any of the regulations are recoverable and enforceable by summary proceedings taken under the provisions of the Criminal Code relating to summary convictions.
R.S., c. F-14, s. 65.
No quashing for want of form
84. No proceeding or conviction under this Act or any of the regulations shall be set aside or quashed on certiorari or otherwise for irregularity or defect in form, and no warrant of arrest or commitment shall be held void by reason of any defect therein, if it is therein alleged that the defendant has been convicted and there is a good and valid conviction to sustain the same.
R.S., c. F-14, s. 66.
APPLICATIONS OF PENALTIES AND FORFEITURES
Penalties and forfeitures
85. The Governor in Council may prescribe the manner in which the proceeds of penalties and the proceeds of the sale of confiscated things shall be distributed.
R.S., c. F-14, s. 67.
Appeal in proceedings by indictment
86. (1) For the purpose of Part XXI of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1), subsection 72(1), (2) or (3) or section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall be considered a sentence within the meaning of section 673 of the Criminal Code.
Appeal in summary conviction proceedings
(2) For the purpose of Part XXVII of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1), subsection 72(1), (2) or (3) or section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall be considered a sentence within the meaning of section 785 of the Criminal Code.
R.S., 1985, c. F-14, s. 86; 1991, c. 1, s. 27.
APPLICATION OF ACT TO WATERS OTHER THAN CANADIAN FISHERIES WATERS
Application of Act to High Seas
87. (1) The provisions of this Act and the regulations that apply to any or all of Canadian fisheries waters, without anything in the context of those provisions indicating that they apply to any specified area of Canadian fisheries waters, shall, in relation to any fishing vessel or aircraft on or over the High Seas that is subject to the jurisdiction of Canada, or any act or thing done or omitted to be done on, from or by means of any such fishing vessel or aircraft, be deemed to extend and apply to the High Seas.
Regulations
(2) The Governor in Council may make regulations respecting fisheries located in waters other than Canadian fisheries waters applicable to vessels or aircraft subject to the jurisdiction of Canada.
Inconsistency or conflict
(3) Where there is any inconsistency or conflict between any regulations that apply to the High Seas by virtue of subsection (1) and any regulations made under subsection (2), the latter regulations prevail to the extent of the inconsistency or conflict, unless the context otherwise requires.
R.S., c. F-14, s. 69; 1976-77, c. 35, s. 19.
Jurisdiction of courts
88. All courts and justices in Canada have the same jurisdiction with respect to offences under this Act as they have under sections 610 and 611 of the Canada Shipping Act with respect to offences under that Act, and those sections apply to offences under this Act in the same manner and to the same extent as they apply to offences under the Canada Shipping Act.
R.S., 1985, c. F-14, s. 88; 1990, c. 44, s. 18.
RELATED PROVISIONS
R.S., 1985, c. 27 (2nd Supp.), s. 11:
Transitional: proceedings
"11. Proceedings to which any of the provisions amended by the schedule apply that were commenced before the coming into force of section 10 shall be continued in accordance with those amended provisions without any further formality."
R.S., 1985, c. 40 (4th Supp.), s. 2(2):
Transitional- proceedings
"(2) Every proceeding commenced before the coming into force of this section under a provision amended by the schedule shall be taken up and continued under and in conformity with the amended provision without any further formality."
1990, c. 16, s. 24(1):
Transitional: proceedings
"24. (1) Every proceeding commenced before the coming into force of this subsection and in respect of which any provision amended by this Act applies shall be taken up and continued under and in conformity with that amended provision without any further formality."
1990, c. 17, s. 45(1):
Transitional: proceedings
"45. (1) Every proceeding commenced before the coming into force of this subsection and in respect of which any provision amended by this Act applies shall be taken up and continued under and in conformity with that amended provision without any further formality."
1992, c. 51, s. 67(1):
Transitional: proceedings
67. (1) Every proceeding commenced before the coming into force of this subsection and in respect of which any provision amended by this Act applies shall be taken up and continued under and in conformity with that amended provision without any further formality.
1992, c. 51, s. 68:
Transitional: salary
68. (1) Notwithstanding the Judges Act, a person who holds the office of Chief Judge of the County Court of Nova Scotia immediately before the coming into force of section 6 shall continue to be paid the salary then annexed to that office until the salary annexed to the office of judge of the Supreme Court of Nova Scotia exceeds that salary, at which time that person shall be paid the salary annexed to the last-mentioned office.
Transitional: annuity
(2) Notwithstanding the Judges Act, the Chief Judge of the County Court of Nova Scotia shall, on the coming into force of this subsection, be deemed to have made an election in accordance with section 32 of that Act for the purposes of subsection 43(2) of that Act, and if, at the time of resignation, removal or attaining the age of retirement, is holding office as a puisne judge of the Supreme Court of Nova Scotia or the Nova Scotia Court of Appeal, the annuity payable under section 42 of that Act shall be an annuity equal to two thirds of the result obtained by subtracting five thousand dollars from the salary annexed at that time to the office of Chief Justice of the Supreme Court of Nova Scotia.
Idem
(3) Where, before the coming into force of this subsection, an annuity has been granted to or in respect of a judge of a county or district court of any province pursuant to sections 42, 43, 44 and 47 of the Judges Act, payment of that annuity shall continue in accordance with those sections, as they read immediately before the coming into force of this subsection.
1998, c. 30, s. 10:
Transitional - proceedings
10. Every proceeding commenced before the coming into force of this section and in respect of which any provision amended by sections 12 to 16 applies shall be taken up and continued under and in conformity with that amended provision without any further formality.
AMENDMENT NOT IN FORCE
1992, c. 47, s. 84 (Sch., s. 3):
1991, c. 1, s. 24
3. The heading preceding section 79.7 and section 79.7 are repealed.