Evidence of meeting #43 for Fisheries and Oceans in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was questions.
A recording is available from Parliament.
Conservative
Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC
Thank you, Mr. Chair.
Basically, this is the third of the three amendments related to that regulation-making authority. Because that authority now allows the government to require documentation, or the ability to make a regulation requiring documentation, the lawyers require that the fine and punishment section also explicitly relate to that. That's all this is doing. Because we've added a new offence, this refers to the consequences of that new offence.
Conservative
Conservative
Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC
Well, these are the amounts that were in Bill S-3 in order to bring it in line with the port state measures agreement. We're not changing the amounts here, but are simply referring to a particular offence that was amended earlier in this meeting. Is that clear to you?
NDP
Yvon Godin NDP Acadie—Bathurst, NB
No. What I was looking at was whether there was something before Bill S-3. Or has it just come in Bill S-3 and it's now just to follow Bill S-3?
Conservative
Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC
Maybe we'll ask Angela to answer that one for us, if we can.
Acting Director, Global Fisheries & Marine Governance Bureau, Strategic Policy, Department of Fisheries and Oceans
Thank you.
Bill S-3 introduces import prohibitions under subsections 5.6(1) and 5.6(2). The penalties related to that are in section 18. That's in Bill S-3. The amendment that's being proposed is in relation to what was discussed earlier, which was to include a new prohibition that's articulated in subsection 5.6(3). It's a penalty that's being added in relation to that particular import prohibition that's been added.
In terms of the amounts, the amounts for the import prohibition in subsections 5.6(1) and 5.6(2) are indicated in Bill S-3, but there is a doubling provision. The reason there is a doubling provision is that the prohibitions require a knowledge component and normally for a knowledge component there's a higher penalty. For the amendment that was made earlier to section 5.6(3), the penalty provision is the same—but there's no doubling provision because it's considered a strict liability offence.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
What were the words before in the history? Was there something there? It looked like it's all new starting from Bill S-3.
Conservative
Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC
I think the question for Angela is—and I think it's a good question—were there no import prohibitions before Bill S-3 in the Coastal Fisheries Protection Act?
Acting Director, Global Fisheries & Marine Governance Bureau, Strategic Policy, Department of Fisheries and Oceans
Sorry. I provided a more complicated answer than you were asking, but yes.
NDP
François Lapointe NDP Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Thank you for being here, Ms. Bexten.
I want to make sure I have understood correctly. Before Bill S-3 was introduced, someone importing the products of illegal fishing into Canada would probably not have been fined. Not only does Bill S-3 state that this is illegal, but it also sets a maximum fine of $500,000. I have seen our Conservative colleagues more often opt for minimum sentences. But here we have a maximum sentence.
How can we justify the bill providing for a maximum limit? For a criminal who has done this 20 times in a row in two years and who has created a black market worth millions of dollars, why should the fine be capped at $500,000? Which expert decided on this $500,000 limit? Why isn’t it $800,000 or $1 million? Where did the assessment come from? Why not leave it to the judge, who would be fully competent to decide that, in this or that case, there has been a black market worth several millions of dollars for two years and that the fine will not be $500,000, but $1 million. Where does this come from?
Acting Director, Global Fisheries & Marine Governance Bureau, Strategic Policy, Department of Fisheries and Oceans
For the answer to the question with regard to the level of the fines, I believe that was a question that was asked earlier by the committee. I had indicated that the level of the fines was determined by doing research into what existing penalty regimes we have under other pieces of Canadian federal legislation, such as the Fisheries Act, the Species at Risk Act, and also with WAPPRIITA. The level of fines that are indicated in the bill are in line with those existing pieces of federal legislation.
With regard to your question about multiple offences, there is a provision in the bill for taking into consideration the value of what the catch or the import is worth. There is some flexibility there.
NDP
François Lapointe NDP Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
My understanding is that the wording of the bill would be flexible enough to allow judges to decide that a ceiling of $500,000 is not sufficient in cases where this is done repeatedly, where it is excessive or where it makes no sense. Based on this reasoning, any given organization or individual could be fined, say, $800,000 instead of $500,000. If I understood your answer correctly, the wording of the bill would allow for this kind of flexibility.
Acting Director, Global Fisheries & Marine Governance Bureau, Strategic Policy, Department of Fisheries and Oceans
Thank you.
I would draw your attention to proposed new section 18.04. That is the financial benefit provision.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
In a sense, doesn’t this provision replace section 18.04? We now have a maximum fine. If the amount had been $100,000 or more, it would have been open-ended.
We are talking about “an additional fine in an amount equal to the court’s estimation of those benefits”.
It could have been $200,000, but we can say that the estimation is $300,000. This means that the court can impose a fine of over $100,000 or $200,000.
Paragraph 18.03(1)(a) reads as follows: “on conviction on indictment, to a fine of not more than $500,000”. I think we are tying our hands completely. This provision will take precedence over the other paragraph, because it sets a maximum fine. There was no such thing before; it just didn’t exist.
We are now using the words “of not more than”. We are not talking about an additional fine in an amount equal to the court’s estimation of those benefits that would be higher than the amount in the provision you are proposing. The fine is now set at a maximum amount. You cannot exceed the maximum amount. An additional fine could go from $200,000 to $300,000 or from $300,000 to $400,000, but now there is a limit of $500,000. If I were the defence lawyer, I would say that the judge is not allowed to impose a fine higher than the maximum fine.
To determine the additional fine, the judge could have some fun and impose a fine between $100,000 and $500,000, but the maximum fine is $500,000.
Before we make a decision on that, I suggest that you take a really close look at this to see if what is being said makes sense, because once the amendment is passed, there is no turning back.
My colleague François Lapointe said this earlier. Imagine that a person has been suspected of committing offences for two or three years, but that they have not been caught yet. Finally, they are caught. However, $500,000 is not a lot for a fisherman. One catch of fish products may be worth more than that. If you are familiar with fishing, you know that tuna, for instance, can bring in between $500 and $600 per fish. For those fishermen, $500,000 is not a big deal.
In a word, this section concerns me. Do you have a legal opinion saying that $500,000 does not mean anything? If, in special cases, $500,000 does not mean anything, section 18.04 should say so and should specify that it takes precedence over the other provision, because this is not the case right now and no reference is made to that.
NDP
François Lapointe NDP Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
If I understand the reasoning behind section 18.04 correctly, if a person is convicted of making money from fishing illegally, not of an attempt to do so, they could receive a $500,000 fine and a judge could decide the following:
If a person is convicted of an offence under this Act and the court is satisfied that, as a result of committing the offence, financial benefits accrued to the person, the court may, despite 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 estimation of those benefits.
As I understand it, the judge will be limited to a fine of $500,000 and will not be able to impose an additional fine if it is proven that the offender derived financial benefits from illegal fishing. The judge will then be required to ignore the seriousness of the offence. If a warehouse with $8 million worth of fish is discovered, and the owners did not have time to sell the fish, it is still a serious offence. The judge will need to have evidence that those folks had time to sell, say, $3 million worth of fish from the $8 million so that a fine over $500,000 is warranted.
We are talking about offenders committing serious crimes and harming our fishery. I find that this situation is really tying judges' hands. A case like that is a serious offence. Even though those people may not have derived financial benefits from the catch, they were smuggling a type of fish that they had no right to catch, fish worth several million dollars. But because they got caught before making the money, the fine would be capped at $500,000.
Do you follow my reasoning? Something about this is bothering me.
