An intro to the federal Fisheries Act and the offence of “obstruction”

The Fisheries Act is federal law that engages with Canadian fishing rights and obligations.  Offences under the Fisheries Act include: breach of licence conditions, polluting waters inhabited by fish, obstructing other vessels, etc.

As a general rule, the federal government has the authority to regulate Canadian coastal waters from the low-water line to a distance of 200 miles from the coast (potentially up to 350 miles in some cases). The federal government has specific constitutional authority to make laws in relation to “sea coast and inland fisheries” and “navigation and shipping” (sections 91(12) and 91(10). The province has authority over “property and civil rights in the province” (section 92(13)). Some areas, such as environmental concerns, receive treatment by both the federal and provincial governments. You can read more about this topic here.

In Canada it is critical that law-makers and other agents of government act within the appropriate scope of authority and respect the limits of their allotted powers. If they fail to do so, this could render their laws or actions invalid. Canadian courts consider it very important that each level of government respect the other’s authority.

Offences under the Fisheries Act are different from offences under the Criminal Code.  They are regulatory offences and not pure criminal offences. To prove the defendant committed a regulatory offence the Crown only has to prove the facts of the offence (actus reus) and not the accused’s intent (mens rea). If the Crown succeeds in proving that the offence occurred, then the defendant may offer a due diligence defence in accordance with section 78.6 of the Act:

78.6 No person shall be convicted of an offence under this Act if the person establishes that the person

(a) exercised all due diligence to prevent the commission of the offence; or

(b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.

Under the Fisheries Act, the Crown may elect to proceed by summary conviction or by indictment (section 78). Summary offences are less serious and carry a lesser penalty, ranging up to $100,000 or to one year’s imprisonment. The limitation period for the Crown to begin a proceeding with respect to a summary offence is 5 years from the date of the offence (section 82). There is no time limitation for indictable offences.

One of the offences listed under the Fisheries Act is obstruction of a fishery officer:

62. No person shall obstruct or hinder a fishery officer, a fishery guardian or an inspector who is carrying out duties or functions under this Act.

This section of the Fisheries Act is similar to but different from section 129(a) of the Criminal Code:

129. Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or

(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,

is guilty of

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction.

It should be noted that the Criminal Code definition of “peace officer” includes fishery officers while they are performing duties or functions under the Fisheries Act or the Coastal Fisheries Protection Act. That means that if you obstruct a fishery officer during the course of an investigation you could be charged under the Criminal Code for obstructing a peace officer.

The offence of obstruction in the Fisheries Act is different from the Criminal Code because, as a strict liability offence, it does not require mental intent. Furthermore, because the term “obstruction” is not defined in the Fisheries Act it carries the common law Criminal Code definition:

“Obstruction … means any act, not necessarily an unlawful act, including a concealment, which frustrates or makes more difficult the execution of a peace officer’s duty.” (R. v. Moore (1977), 36 C.C.C.(2d) 481 (B.C.C.A.), per Carruthers, J.A., at pp. 490-491) [as cited in R. v. Petten (C.), 1996 CanLII 11683 at para 7]

In 2007 a case called R. v. James was heard in the Newfoundland Provincial Court. The facts of this case revolved around a number of fishers who were caught fishing lobster out of season. More than eighty charges were laid, ranging from unlawful confinement, to Criminal Code obstruction and obstruction under the Fisheries Act. Two individuals were found guilty of committing both types of obstruction. The judge in this case approached Criminal Code obstruction along the lines of intentional destruction of evidence. The Fisheries Act obstruction was limited to temporarily interfering with the investigation, which amounted to getting in the way of the fishery officers and hampering their attempts to get free of ropes jammed in their propeller.

There haven’t been a lot of cases addressing this particular issue, but R. v. James demonstrates that it is open to the court to penalize fishers with charges of obstruction under both the Criminal Code and the Fisheries Act at the same time. Because of the burden of proof I think that fishery officers are more likely to lay charges for the Fisheries Act offence of obstruction and only charge fishers with the Criminal Code offence where there is clear intent to interfere with an investigation or destroy evidence.

If you have questions regarding your fishing rights or obligations please contact Sarah at sarah@cslegal.ca or 902.209.6537.

 

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