R. v. Ivy Fisheries Ltd.

R. v. Ivy Fisheries Ltd.

The court held that for these offences 'monetary benefits' under s.79 are equated with the gross sale value of the illegally caught tuna in the absence of evidence proving deductible expenses on a balance of probabilities; the defence failed to discharge that burden, therefore additional fines under s.79 equal to gross sales (total $643,234.82 apportioned) are justified; fines under s.78 and a suspension of licence #142645 were imposed to achieve specific and general deterrence and proportionality.

Citation
2006 NSPC 26
Parties
Crown: R; Accused: Andrew William Henneberry; Accused: Clark Andrew Henneberry; Accused: Marcel Steven Henneberry; Accused: Wesley Clark Henneberry; Accused: Paul Raymond Parnell; Accused: James Phillip Ryan; Accused: Gregory Burton Smith; Corporate Accused: Ivy Fisheries Limited
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
14 June 2006
Procedural Posture
Criminal (regulatory) Fisheries Act Offences / Sentencing Decision (provincial Court)
Outcome
Convictions previously entered; sentencing imposed: fines under s.78 and additional disgorgement fines under s.79 apportioned among offenders; licence #142645 suspended.
Legal Topics
Sentencing Principles, Monetary Benefit / Disgorgement Under S.79, Licence Suspension, Apportionment of Proceeds, Burden of Proof for Expense Deductions
Source Language
English
Fisheries Law Criminal Law Regulatory Enforcement Sentencing Sentencing Principles Monetary Benefit / Disgorgement Under S.79 Licence Suspension Apportionment of Proceeds +1 more

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Parties

R

Crown

Andrew William Henneberry

Accused

Clark Andrew Henneberry

Accused

Marcel Steven Henneberry

Accused

Wesley Clark Henneberry

Accused

Paul Raymond Parnell

Accused

James Phillip Ryan

Accused

Gregory Burton Smith

Accused

Ivy Fisheries Limited

Corporate Accused

Procedural Posture

Criminal (regulatory) Fisheries Act Offences / Sentencing Decision (provincial Court)

Legal Issues

  1. 1 What is the appropriate penalty for each offence under the Fisheries Act (ss.78 and 79)?
  2. 2 Whether 'monetary benefit' under s.79 equals gross sales value or net profit after expenses
  3. 3 Whether defendants met burden to prove deductible expenses

Ratio Decidendi

The court held that for these offences 'monetary benefits' under s.79 are equated with the gross sale value of the illegally caught tuna in the absence of evidence proving deductible expenses on a balance of probabilities; the defence failed to discharge that burden, therefore additional fines under s.79 equal to gross sales (total $643,234.82 apportioned) are justified; fines under s.78 and a suspension of licence #142645 were imposed to achieve specific and general deterrence and proportionality.

Court Disposition

Convictions previously entered; sentencing imposed: fines under s.78 and additional disgorgement fines under s.79 apportioned among offenders; licence #142645 suspended.

Orders

  • Clark Andrew Henneberry: Count 2 fine $7,500; Count 10 fine $10,000.
  • Wesley Clark Henneberry: Count 3 fine $8,000 plus s.79 additional fine $1,010.28; Count 4 fine $8,000; Count 5 fine $7,500; Count 6 fine $25,000 plus s.79 additional fine $2,688.03; Count 10 fine $10,000.