George Denton & Associates Ltd. v. Canada
T-1388-90
Nadon J.
8/10/93
23 pp.
Claim for payment of proceeds of sale of fish-Corporate plaintiff owner and operator of ship "Ocean Swell"-Individual plaintiff President of corporate plaintiff and majority shareholder thereof-Corporate and/or individual plaintiffs holder of 1988 fishing licence for ground fish-Government form showing company as holder, but document signed by individual plaintiff-On September 17, 1988 fishery officers seizing plaintiffs' fish based on belief caught contrary to Fisheries Act, Atlantic Fishery Regulations-Owners of fish plant informed fish under seizure-Fish plant agreeing to purchase fish-Hours later fish plant owner informing officers would advise individual plaintiff fish had been seized-Seizure report naming individual plaintiff as "accused", despite existence of box labelled "persons unknown"-Both plaintiffs charged with failing to make returns in respect of Act, s. 48 demands and with failing to comply with condition of fishing licence as to quantity of fish permitted to be taken under Regulations, s. 33(2)-Corporate plaintiff found guilty in respect of s. 48 charge, fined $3,000, fishing privileges suspended for 30 days-S. 33(2) charges withdrawn as variation order imposing quota condition illegal for not complying with Official Languages Act-S. 58(6) providing seized fish becoming property of Crown when at time of seizure, ownership of fish cannot be ascertained-Pursuant to s. 58(6) form of seizure and forfeiture in the Queen v. person or persons unknown issued on December 29, 1989-First time indication that upon seizure on September 17, 1988 fish forfeited to Her Majesty as "at the time of the seizure" could not ascertain ownership of fish- Whether ownership of fish ascertainable at time of seizure-Corporate plaintiff's claim allowed-Although no reported cases directly on point, several cases reviewed to illuminate purpose and intent of Act-When federal Crown obtaining conviction against identified party, forfeiture always occurring under s. 58(5) i.e. when Crown knows or believes it knows identity of person responsible for infraction, appropriate process for Crown to charge that person and if conviction obtained, in addition to penalty, forfeiture may be ordered under s. 58(5)-S. 58(6) used only when ownership not "ascertainable" at time of seizure-S. 58(6) needed to allow Crown to dispose of ownerless goods seized in suspicion of violations of Act to avoid accumulation of unmanageable inventory-Ownership of fish ascertainable at time of seizure-Fishery officer knew individual plaintiff "quite well"-Also knew he was "customary" captain of vessel-Officer testified "no doubt in his mind who owned the vessel"-Officers knew original of fishing licence had to be kept on board vessel and copy of licence in possession of Department-Although authorized to enter vessel's wheel house and examine fishing licence, ship's registration documents officer not doing so-Had officers examined fishing licence, ship's registration documents would have ascertained, ship owned by corporate plaintiff and fishing licence in name of either plaintiff-Fish plant owner's reference to individual plaintiff leading to belief in all likelihood individual plaintiff owner of fish-If any doubts as to identity of accused, could have marked box "unknown" on seizure report-Forfeiture will occur if seizing officers unable, by reasonable means, to find out who owns seized property-"At the time of the seizure" not interpreted strictly, but as meaning "at about the time of the seizure"-Fishery officers not making any attempt to ascertain ownership of fish-Plaintiffs not seeking relief against statutory forfeiture, but determination of whether forfeiture occurred-Forfeiture not occurring because seizing officer so decides, but if, according to terms of Act, officer unable to ascertain ownership at time of seizure-No forfeiture herein because ownership of fish ascertainable-Forfeiture could have been obtained under s. 58(5) when corporate plaintiff sentenced-Company as owner of vessel and holder of licence entitled to proceeds of sale of fish-Fisheries Act, R.S.C. 1970, c. F-14, ss. 48, 58 (as am. by S.C. 1985, c. 26, s. 109), 59(2)-Atlantic Fishery Regulations, SOR/86-21, ss. 2 (as am. by SOR/88-141, s. 1), 4, 33(2).