In R. v. F.A.S. Seafood Producers Ltd., 2021 BCCA 312, August 16, 2021, F.A.S. Seafood, owner of the fishing vessel Ocean Pearl, pleaded guilty to fishing in waters in the exclusive economic zone of the United States and of unlawful sale of fish, contrary to section 78 of the Fisheries Act. The master of the Ocean Pearl (Mr. Nichols) pleaded guilty to fishing in waters in the exclusive economic zone of the United States.
The sentencing judge sentenced of F.A.S. Seafood and Mr. Nichols to a fine of $3,000 and a payment order of $27,000 imposed under s. 79.2(f) of the Fisheries Act for fishing in United States waters. For the offence of unlawful sale of fish, the judge sentenced F.A.S. to a fine of $15,000 and a payment order of $135,000 under section 79.2(f) of the Fisheries Act. The sentencing judge directed payment of the section 79.2(f) assessments be made to the Pacific Salmon Foundation.
On appeal to the summary conviction appeal court, the appeal judge set aside the two payment orders imposed under section 79.2(f) and increased the fines for unlawful fishing to $20,000 as against F.A.S. Seafood, and $15,000 as against Mr. Nichols. He did not modify the fine of $15,000 for unlawful sale as against F.A.S. Seafood.
Section 79.2(f) of the Fisheries Act:
Section 79.2(f) states:
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 …
(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.
The Crown was granted leave to appeal to the British Columbia Court of Appeal upon the following grounds:
1. The summary conviction appeal judge erred in law in finding that damage to fish stock, fish habitat, or management of the fishery was a precondition to the imposition of a payment order under s. 79.2(f) of the Fisheries Act; and
2. The summary conviction appeal judge erred in law in varying the fines and cancelling the payment orders, thereby imposing a sentence that was unfit in all the circumstances.
The Court of Appeal:
The appeal was allowed, in part. The Court of Appeal held that “the summary conviction appeal judge was correct in concluding that the sentencing judge erred by failing to consider the legislative criteria for the s. 79.2(f) orders. I consider, also, that the sentencing judge failed to determine first an appropriate punishment, and then to consider whether any additional payment was warranted in the circumstances…Considering these matters, and the absence of any rationale provided by the sentencing judge for imposing the orders under s. 79.2(f), I consider the s. 79.2(f) orders cannot stand as they were imposed by the sentencing judge, and further that there is no basis in the record for us to fill in the gaps. The summary conviction appeal judge set the s. 79.2(f) orders aside in their entirety. I agree with that determination” (at paragraphs 58 and 59).
The Court of Appeal held that “that it was outside the court’s jurisdiction to direct monies to be paid under s. 79.2(f) other than to Her Majesty. In that exercise it also was not open to the court to direct the department of government that should receive the funds or the particular use to which they should be put” (at paragraph 28).
The Court of Appeal also held that “the application of s. 79.2(f) does not require the judge to find that damage has been caused to the fishery or fish by the offences, although a finding of such damage could support an order under s. 79.2(f) by assisting in remediation of damage; properly interpreted, s. 79.2(f) does not establish a prerequisite to the section’s use that damage actually has been caused to fish, fish habitat, or management of a fishery” (at paragraph 43).
In addition, the Court of Appeal concluded that that “the primary character of an order under s. 79.2 is not ‘punishment’, and that any punishment should be determined first so that an order under s. 79.2 is ‘in addition to’ such punishment…In other words, a payment ordered under s. 79.2(f) is, properly considered, a topping. I would venture to say that in most cases the amount ordered to be paid under s. 79.2(f) generally will not exceed the fine. It appears from the authorities with which we have been provided that the section is rarely used and this, and Aero’s case, stand out in the scale of payment required under s. 79.2(f) when compared to the fines imposed under s. 78” (at paragraphs 51 and 52).
The Court of Appeal increased the fine imposed upon F.A.S from $15,000 to $75,000 for the unlawful sale of the fish offence (at paragraphs 63 to 66):
The judge increased the fines for unlawful fishing from $3,000 to $20,000 and $15,000 respectively against F.A.S. Seafood and Mr. Nichols. Although the Crown contests the amounts assessed in respect of those offences, we have been pointed to no authority that would demonstrate that the sentence now in effect for this unlawful fishing is demonstrably unfit. I would not alter the sentences imposed for those offences (count 2).
I am of a different view with respect to the offence of unlawful sale of fish. As a consequence of the order of the summary conviction appeal judge, the only amount payable by F.A.S. Seafood in respect of that offence is a fine of $15,000, notwithstanding the sentencing judge’s characterization of F.A.S. Seafood as “as culpable as it is possible to be”, and the likely entwinement of the sentencing judge’s imposition of the fine and payment order under s. 79.2(f).
I consider that the sentence of a $15,000 fine for the unlawful sale by F.A.S. Seafood is demonstrably unfit. The total sentence assessed against Aero as the buyer of the fish was $60,000 (although broken into two pieces). F.A.S. Seafood has egregiously flaunted the authority of the officers of the Department of Fisheries and Oceans by commission of the offence; satisfaction of the seizure order, evaded by commission of the offence, would have engaged issues of another scale entirely.
The offence is serious and the sentencing judge found F.A.S. Seafood’s responsibility to be high. These were assets of significant value at stake and, in the scale of the value of the catch and the thwarted seizure order, the fine must be increased significantly in the interests of deterrence. In these circumstances and consistent with the sentencing judge’s views on relative culpability expressed in his para. 86, I consider that a fine of $75,000 should be imposed on F.A.S. Seafood for the offence of unlawful sale of fish (count 7).