Fisheries Committee on Nov. 27th, 2025

[Ernie Klassen, Liberal, South Surrey—White Rock, BC]

Okay.

Lastly, do you know of or could you recommend any parts of the Fisheries Act that could strengthen your enforcement?

[Hannah Rogers]

My role isn't to make recommendations on legislation. I'm the one who gets to go out and enforce things.

As I said, we have been looking at whether there's a possibility of using administrative monetary penalties. They are not prosecutions. Right now under the Fisheries Act, we can issue a warning letter: Don't do this again. We can issue directions, but only in cases where something is actually occurring at the moment or is very likely to occur. If a spill is happening or about to happen, we can issue ministerial orders and then we can prosecute. There's no in-between for when there's a small or a lower-medium offence that's going on.

Administrative monetary penalties, or AMPs, are something we are looking at, but I don't want to get out ahead of anybody and say it's a recommendation.

[Ernie Klassen, Liberal, South Surrey—White Rock, BC]

Thank you.

Ms. O'Connor, you talked about discretion in enforcement. Are there any laws that are not enforceable, for example, with first nations communities?

[Shannon O'Connor]

I'm not able to speak to what an enforcement agency might do or assess for itself. What I can speak to is that if there was a question, the Public Prosecution Service would be available to provide advice to law enforcement agencies. However, there are no federal laws that I'm aware of where that is an issue, subject to, let's say, a constitutional challenge alleging the law itself is unconstitutional.

[Ernie Klassen, Liberal, South Surrey—White Rock, BC]

Ms. O'Connor, are there unique challenges with respect to gathering admissible evidence for Fisheries Act offences?

[Shannon O'Connor]

There can be challenges in the context of complex prosecutions. They're not necessarily unique to Fisheries Act offences as compared to other environmental, regulatory, economic or criminal offences.

Some of the general challenges one might expect to see relate to charter challenges, such as whether evidence has been gathered in a manner that is consistent with charter rights or infringes on charter rights. There can also be some questions in a regulatory context about when enforcement is being conducted under an inspection hat rather than an enforcement hat. That can impact the evidence that's gathered and the charter protections that may or may not apply. That is something we train our regulatory prosecutors on, so they are always mindful of it and are able to give good advice to enforcement officers and so we can support them in staying on the right side of charter rights in those circumstances.

Those are the two I would highlight in particular. One that I will also mention, though, is the consideration of section 35 rights that arises in the context of indigenous individuals. An indigenous individual, if charged with, let's say, a Fisheries Act offence, although it's certainly not exclusive to that, may raise a defence that it's a charter right—an aboriginal or a treaty right. We will also consider that in the context of our prosecutions.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Klassen.

Mr. Deschênes, you have the floor for two and a half minutes.

[Alexis Deschênes, Bloc, Gaspésie—Les Îles-de-la-Madeleine—Listuguj, QC]

Thank you very much, Mr. Chair.

Ms. O'Connor, I would like to add a request for documents to the one made by my Conservative colleague, committee vice-chair Mr. Arnold. He asked you how many investigation files have been submitted and how many investigation files have been approved since 2018. For my part, I would like to know what percentage of investigation files submitted to your service are ultimately authorized, in total. I'm not referring only to cases involving the enforcement of the Fisheries Act, but also to cases involving the enforcement of all federal legislation and the Criminal Code. Since 2018, what percentage of investigation files submitted have led to prosecutions under the Fisheries Act?

[Shannon O'Connor]

The request is noted. We'll certainly follow up on that.

[Alexis Deschênes, Bloc, Gaspésie—Les Îles-de-la-Madeleine—Listuguj, QC]

Thank you very much.

Now, let's continue the discussion. Earlier, we saw that the public interest test takes indigenous identity into account. I'm going to ask a question so that people who are following our work understand.

If a white person and a first nations person are both arrested with a female lobster, which is illegal under the Fisheries Act, it is possible that a charge could be laid against the white fisher, but when it comes to charging the indigenous fisher, the prosecutor must follow the instructions and consider the identity of the accused and take into consideration the impacts of colonialism, residential schools and systemic discrimination?

Am I correct in saying that, when two individuals commit the same offence, the first nations member might not be charged because of their identity?

[Shannon O'Connor]

In every case, we consider all the circumstances of the alleged offence and the circumstances of the individual in question, on a case-by-case basis. Many factors are considered in determining the circumstances of the accused.

Yes, systemic discrimination and those other factors are considered not only for indigenous persons, but also for persons from other communities affected by racism or systemic discrimination. We also consider a range of factors such as the person's age and whether or not it is their first offence.

So it is one of many factors considered for each person. The circumstances always differ from case to case.

[Alexis Deschênes, Bloc, Gaspésie—Les Îles-de-la-Madeleine—Listuguj, QC]

So it is entirely possible, if two people are in the same situation, that the indigenous person might not be charged, in light of the historical experience of indigenous persons?

[Shannon O'Connor]

We can't say that, hypothetically speaking. It always depends on the individual circumstances and the allegations.

[Alexis Deschênes, Bloc, Gaspésie—Les Îles-de-la-Madeleine—Listuguj, QC]

What is stopping you from agreeing with me on that interpretation?

[Shannon O'Connor]

It is because prosecutors must consider the factors in each individual case. That is something I always did when I was a prosecutor. I'm still a prosecutor, but what I want to say is that when I was in charge of cases, we always looked at the individual circumstances of the accused, the circumstances of the community we were in and the circumstances of the individual allegation.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Deschênes.

Mr. Hardy, welcome to the committee today. You now have the floor over for five minutes.

[Gabriel Hardy, Conservative, Montmorency—Charlevoix, QC]

Thank you, Mr. Chair.

Thank you to all the witnesses for being here today.

You bring very relevant information to the committee. For the past few weeks, the committee has heard some pretty incredible evidence about the seemingly unequal application of the law. I'm referring to tolerance of commercial offences and there being almost no prosecutions. People are saying it makes no sense. It goes to the very nature and purpose of what we're doing here.

I looked at the Public Prosecution Service of Canada's guides from 2014 and 2020. Now, there is much more emphasis on identifying the person who commits a crime. In 2014, there was only one mention of first nations or indigenous people. In the 2020 guide, there are more than 20. In one instance, when an offence is committed by indigenous groups or individuals in a business that is not an ancestral right, will your directives have an influence or not?

Are you going to take into account whether it's an indigenous person, a business or something else? Is there a bias in favour of first nations?

[Shannon O'Connor]

There's never a bias in how we handle our cases. We consider each case individually, in accordance with the factors described in our guides and the case law.

[Gabriel Hardy, Conservative, Montmorency—Charlevoix, QC]

The public interest keeps coming up. Can you define the public interest for me and tell me how it was possible to separate the public interest based on ethnic origin or the situation? You said a few seconds ago that it depends on where you are in the territory. Where does the public interest no longer apply and does it depend on the territory or ethnicity of the person committing the offence?

[Shannon O'Connor]

If I understand your question correctly, the public interest always applies. In many of our cases, prosecutions are in the public interest.

[Gabriel Hardy, Conservative, Montmorency—Charlevoix, QC]

What is the public interest?

[Shannon O'Connor]

The public interest refers to the circumstances that require us to conduct a criminal prosecution in a criminal court, or to choose other options such as reconciliation. Let's say a young person commits a crime for the first time. It is a crime, of course, but we are not as strict. We consider whether they really need to go through the criminal justice system or whether there might be another way of managing the situation.

[Gabriel Hardy, Conservative, Montmorency—Charlevoix, QC]

You're saying that the public interest means looking for specific characteristics that may or may not exclude a person from a prosecution. Am I understanding that correctly?

[Shannon O'Connor]

It's not necessarily a case of excluding them from prosecution, but rather understanding whether this type of case warrants criminal prosecution.

[Gabriel Hardy, Conservative, Montmorency—Charlevoix, QC]

Witnesses tell us that they see almost no prosecutions for a certain type of population, whereas when it comes to them, they get a slap on the wrist every time. We agree that this inequality is not in the public interest. If the majority of people are not given that leeway and a minority are exempted from prosecution under the act, that's not the public interest; that's a systemic exception.