Fisheries Act (R.S.C., 1985, c. F-14)

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note:Exemption

79.61 No person commits an offence under this Act by reason of exercising powers or performing duties and functions related to the administration or enforcement of this Act or the regulations, or by reason of accompanying a person exercising those powers or performing those duties and functions, if, in that exercise or that performance, the person complies with the conditions that the Minister may impose.

Ticketable Offences

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Joint Liability

Marginal note: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.

81 [Repealed, 1991, c. 1, s. 25]

Limitation of Suits

Marginal note:Limitation period

82 A proceeding by way of summary conviction in respect of an offence under this Act may not be commenced later than five years after the day on which the offence was committed.

Form of Procedure

Marginal note: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.

Marginal note: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.

Applications of Penalties and Forfeitures

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Alternative Measures Agreements

Marginal note:Definitions

86.1 The following definitions apply in sections 86.2 to 86.95.

alternative measures

alternative measures means measures in respect of the protection of fisheries, fish or fish habitat or the prevention of pollution, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act. (mesures de rechange)

Attorney General

Attorney General means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which the proceedings are taken, and includes the lawful deputy of either of them. (procureur général)

Marginal note:Use of measures

• 86.2 (1) Alternative measures may be used only if doing so is not inconsistent with the purpose of this Act and the following conditions are met:

  • (a) the alleged offence is an offence under this Act, except an offence under section 62 or 63 or any other offence referred to in any regulations made under paragraph 86.95(a);

  • (b) an information has been laid in respect of the offence;

  • (c) the Attorney General, after consulting with the Minister, is satisfied that the measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors:

    • (i) the importance of the protection of fisheries, fish or fish habitat or the prevention of pollution,

    • (ii) the alleged offender’s history of compliance with this Act,

    • (iii) whether the offence is a repeated occurrence,

    • (iv) any allegation that information is being or was concealed or other attempts to subvert the purpose and requirements of this Act are being or have been made, and

    • (v) whether any remedial or preventive action has been taken by or on behalf of the alleged offender in relation to the offence;

  • (d) the alleged offender has been advised of the right to be represented by counsel;

  • (e) the alleged offender accepts responsibility for the act or omission that forms the basis of the offence;

  • (f) the alleged offender applies, in accordance with regulations made under section 86.95, to participate in the measures;

  • (g) the alleged offender and the Attorney General have entered into an alternative measures agreement within 180 days after the day on which the Attorney General provided the alleged offender with initial disclosure of the Crown’s evidence;

  • (h) the Attorney General considers that there is sufficient evidence to proceed with the prosecution of the offence; and

  • (i) the prosecution of the offence is not barred at law.

• Marginal note:Restriction on use

  (2) Alternative measures shall not be used if the alleged offender

  • (a) denies participation or involvement in the commission of the alleged offence; or

  • (b) expresses the wish to have any charge against them dealt with by the court.

• Marginal note:Admissions not admissible in evidence

  (3) No admission, confession or statement accepting responsibility for a given act or omission made by an alleged offender as a condition of being dealt with by alternative measures is admissible in evidence against them in any civil or criminal proceedings.

• Marginal note:Dismissal of charge

  (4) If alternative measures have been used, the court shall dismiss the charge laid against the alleged offender in respect of that offence if the court is satisfied on a balance of probabilities that the alleged offender has complied with the alternative measures agreement.

• Marginal note:No bar to proceedings

  (5) The use of alternative measures is not a bar to any proceedings against the alleged offender under this Act.

• Marginal note:Laying of information, etc.

  (6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with the law.