Element of a New Fisheries Act - Discussion Document

ADMINISTRATIVE SANCTIONS

BACKGROUND

In coastal commercial fisheries, there is broad support for using administrative sanctions as the primary tool for handling violations by licence-holders.

The benefits of administrative sanctioning are:

• Additional deterrence;
• Credibility within the fishing community;
• Expert decision-making; and
• Operational efficiency.

Currently, the Minister may suspend or cancel licences only for breaches of licence conditions, not for breaches of the regulations or the general prohibitions of the Act. For all other infractions, DFO must proceed through the provincial Courts, which may, in addition to imposing fines and jail terms, suspend or cancel licences upon conviction for an offence.

The new Act contains a procedure for issuing tickets for violating the Act and regulations. However, in many jurisdictions, there are no arrangements in place between DFO and the provinces/territories for handling such tickets. Hence, many violations give rise to lengthy trials.

A popular element of the 1995 Fisheries Act proposal and the 1993 DFO Reform Bill was an administrative Tribunal system, operating on each coast:

• to impose licence sanctions and associated, supplemental financial penalties on licensed harvesters; and
• to process tickets for minor infractions in coastal fisheries.

OVERVIEW OF SANCTIONS SYSTEM

DFO is proposing to deal with infractions in designated coastal fisheries by way of administrative licence sanctions and monetary penalties. This would decriminalize many of those matters which are now offences under the Fisheries Act and dealt with by the criminal justice system.

The system would apply to the types of licence identified by regulation.

Demonstrable arms length operation from DFO and the demonstrable impartiality and expertise of the decision-makers creates a high level of public confidence and acceptance among fishers themselves.

The proposal has the flexibility to apply the system exclusively to commercial fishing licences or to Aboriginal communal licences and recreational fishing as well.

Violations would be contraventions of the conditions of a licence, prescribed provisions of the Act or the regulations, a fisheries management order or fisheries management agreement, or a sanction order issued by the Tribunal. Violations would be designated as either major or minor. Both types would be prescribed by regulation.

Other contraventions of the Act, such as habitat destruction, offences in the inland fisheries managed by provinces, and commercial poaching (unlicensed fishing), will continue to be offences that are dealt with through the courts. Alternative Measures Agreements (AMA) are an alternative sentencing mechanism to ensure to compliance with the Act and remediation when damage has been cause to fish stocks or fish habitat. A similar mechanism already exists in the Canadian Environmental Protection Act. The provisions respecting AMA contain protocols for the proper handling and exchange of information related to compliance with AMA and enforcement of their terms.

Under this model for Tribunals, violators would request an oral hearing or ask to make written representations for major violations, and may make written representations for minor violations. They would be represented by others, such as legal counsel.

DFO Case Presentation Officers will be responsible for preparing and presenting DFO's case in all violations before the Tribunal.

MINOR VIOLATIONS

• Minor violations would be dealt with by a ticketing procedure.
• Monetary penalties up to a limit of three thousand dollars could be imposed. The amount of the penalty for each violation could be established in regulations.
• The individual who receives a ticket might elect to pay one-half of the prescribed penalty, or contest the ticket by making written representations as to why he/ she should not be held responsible for the violation. Paying half of the prescribed penalty would constitute an admission of responsibility for the violation.
• A minor violation would be "upgraded" to a major violation by a case presentation officer under certain conditions set out in the Act, such as if a violator had a history of recidivism and had been held responsible for previous violations and if the violator's behaviour proved particularly harmful to fish and their habitat according to prescribed criteria.

MAJOR VIOLATIONS

• Proceedings for major violations would be commenced by a DFO Case Presentation Officer serving a notice of a major violation, after considering facts provided by a fishery officer or fishery guardian.
• If the alleged violator did not respond, the DFO Case Presentation Officer may commence default proceedings after thirty days.
• The individual would have thirty days within which to request an oral hearing or the opportunity to make written representations.
• The individual would seek a settlement with the DFO Case Presentation Officer. Under the settlement agreement, DFO and the individual would agree on the licence sanction and any other penalty to be imposed. Any settlement would need to be ratified by the Tribunal. In addition, fisheries management agreements would contain recommended guidelines on appropriate sanctions that would be considered by the Tribunal when imposing sanctions.
• In the case of an oral hearing or written representations, the matter would usually be heard by a single member of the Tribunal. The options would be: to dismiss the proceeding, or allow the proceedings and impose a sanction or sanctions.
• The Tribunal would suspend or revoke a licence, or prohibit the holder from applying for a new licence. Additional penalties for major violations would include monetary penalties up to $30,000, variation of licence conditions (such as quota reduction or gear restrictions), and forfeiture of catch, fishing gear and vessel.

LICENCE APPEALS

• The Tribunal would also hear licence appeals.
• As with violations, the Tribunal would deal only with the type of licence identified in the regulations that accompany this Part of the Act.
• In licence appeals, the Tribunal would either:
  • Allow the appeal and direct the licensing officer to issue a licence; or
  • Dismiss the appeal.