Fisheries Act (R.S.C., 1985, c. F-14)

Marginal note:Return of things not forfeited

• 73.1 (1) Subject to subsection (2), any fish or other thing seized under this Act, or any proceeds realized from its disposition, that are not forfeited to Her Majesty under section 72 shall, on the final conclusion of the proceedings relating to the fish or thing, be delivered to the person from whom the fish or thing was seized.

• Marginal note:Exception

  (2) Subject to subsection 72(4), where a person is convicted of an offence relating to any fish or other thing seized under this Act and the court imposes a fine but does not order forfeiture,

  • (a) the fish or thing may be detained until the fine is paid;

  • (b) it may be sold under execution in satisfaction of the fine; or

  • (c) any proceeds realized from its disposition may be applied in payment of the fine.

Marginal note:Release of seized fish

73.2 Notwithstanding anything in sections 70 to 73.1, a fishery officer or fishery guardian who seizes any fish under this Act may, at the time of the seizure, return to the water any fish that the officer or guardian believes to be alive.

Marginal note:Definitions

74 In sections 75 and 76,

court of appeal

court of appeal means, in the province in which an order under section 75 is made, the court of appeal for that province as defined in section 2 of the Criminal Code; (cour d’appel)

judge

judge means

• (a) in the Province of Quebec, a judge of the Superior Court for the district in which the thing in respect of which an application for an order under section 75 is made was seized,

• (a.1) in the Province of Ontario, a judge of the Superior Court of Justice,

• (b) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen’s Bench,

• (c) in the Province of Newfoundland and Labrador, a judge of the Trial Division of the Supreme Court,

• (c.1) [Repealed, 1992, c. 51, s. 50]

• (d) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, Yukon and the Northwest Territories, a judge of the Supreme Court, and

• (e) in Nunavut, a judge of the Nunavut Court of Justice. (juge)

Marginal note:Application by person claiming interest

• 75 (1) Subject to section 71.01, if any thing other than fish is forfeited to Her Majesty under subsection 72(1) or (4), any person who claims an interest in the thing as owner, mortgagee, lienholder or holder of any like interest, other than a person convicted of the offence that resulted in the forfeiture or a person from whom the thing was seized, may, within 30 days after the forfeiture, apply in writing to a judge for an order under subsection (4).

• Marginal note:Date of hearing

  (2) The judge to whom an application is made pursuant to subsection (1) shall fix a day not less than thirty days after the date of filing of the application for the hearing thereof.

• Marginal note:Notice

  (3) The applicant shall serve a notice of the application and of the hearing on the Minister at least fifteen days before the day fixed for the hearing.

• Marginal note:Order by judge

  (4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,

  • (a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and

  • (b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lienholder, that he exercised such care with respect to the mortgagor or the liengiver,

  the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.

Marginal note:Appeal

• 76 (1) The applicant or the Minister may appeal to the court of appeal from an order made under subsection 75(4) and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the court of appeal from orders or judgments of a judge.

• Marginal note:Application to Minister

  (2) The Minister shall, on application made to him by any person who has obtained a final order pursuant to this section or section 75,

  • (a) except in the case of any thing disposed of under subsection 70(3), direct that the thing to which the interest of the applicant relates be returned to the applicant; or

  • (b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to him.

Marginal note:Exception

77 Sections 74 to 76 do not apply to

• (a) any fishing gear or equipment that has been disposed of pursuant to subsection 73(3); or

• (b) any fish that have been returned to the water pursuant to section 73.2.

Offence and Punishment

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.