Compliance and enforcement policy for habitat and pollution provisions of Fisheries Act: chapter 7

Penalties and Court Orders Upon Conviction

Fines and court orders may be imposed by a court upon conviction for offences under the habitat protection and pollution prevention provisions of the Fisheries Act (Annex F lists penalties for convictions under the Fisheries Act).

Recommendations for Sentencing

Upon conviction, enforcement personnel will recommend that Crown prosecutors request penalties that are proportionate to the nature and gravity of the offence. In preparing their recommendations, enforcement personnel will take into account:

• the nature of the violation and the benefit gained as a result;
• the number and nature of previous convictions by the offender;
• the effectiveness of the recommended penalty in deterring the violator from committing similar violations and ensuring compliance with the statute (specific deterrence);
• the prevalence of the same type of violation generally and any trends in the frequency of occurrence;
• sentencing precedents set by other courts in similar cases;
• the effectiveness of the recommended penalty in remediating the area of negative impact; and
• the effectiveness of the recommended penalty in addressing future protection of habitat, conservation of fish and fish habitat, and pollution prevention issues.

Use of Court Order upon Conviction

Upon conviction of an offender, enforcement personnel will recommend that the Crown request the court to impose an order under section 79.2 of the Fisheries Act. Under this section, a court may impose an order to achieve one or more of the following:

1. prohibit the person from doing any act or engaging in any activity that may result in the continuation or repetition of the offence;
2. direct the person to take action to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence;
3. direct the person to publish in a manner acceptable to the court facts relating to the commission of the offence;
4. direct the person to compensate the Minister for the costs of remedial or preventive actions;
5. direct the person to perform community service;
6. direct the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of conservation and protection of fish or fish habitat;
7. direct 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;
8. direct the person to submit to the Minister on application, within three years after the date of conviction, any information respecting the activities of the person in question that the court considers appropriate in the circumstances; and
9. require 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.

Section 79.6 provides for penalties for non-compliance with a court order by a violator who fails to carry out all of the requirements of an order made pursuant to sections 79.2 or 79.3 of the Fisheries Act. Alternatively, a violator may be found in contempt of court. Contempt of court is a procedure by which the courts enforce compliance with their orders.

Courts can defer sentencing and allow a person convicted of an offence to restore a site to the specifications of regulatory authorities. This co-operation and the value of the work in restoring lost habitat can then be considered as a mitigating factor in sentencing proceedings.