Review of prosecutions in chaotic elver fishery finds cases are being pursued

An internal review into whether federal Crown attorneys are refusing to prosecute infractions related to the turbulent baby eel fishery in the Maritimes has reportedly determined that proper discretion is being used and suggests at least two dozen cases have been brought to court.

The examination was launched following a formal complaint by a commercial licence holder who alleged the Public Prosecution Service of Canada was failing to prosecute cases involving the unauthorized fishing of the juvenile eels, also known as elvers.

In a recent email to the licence holder, David Antonyshyn, the deputy director of prosecutions, said an examination of 70 elver files referred by fisheries officers over a four-year period found about half proceeded to or were approved for prosecution. Others are still under review, while the remainder were declined.

"There was not (and there is still not) any blanket policy not to prosecute particular individuals, or not to proceed with any particular type of offence," Antonyshyn said in the email.

The lucrative spring elver fishery along Nova Scotia and New Brunswick rivers has descended into chaos and violence in recent years, with widespread poaching due to soaring demand from Asia, where the eels are shipped live and then grown to maturity for food. This year, the federal fisheries minister cancelled the season outright due to conservation and safety concerns.

Brian Giroux, who lodged the complaint and provided the response to CBC, said he doubts the review was thorough and remains concerned prosecutors are dropping cases, which he believes is helping fuel violence in the fishery.

He said around three dozen cases that have gone ahead are just a small portion of the number of people who are stopped by fisheries officers for illegal elver fishing but then released.

"This has gone from being a little problem to being a major criminal activity," he said in an interview.

CBC has requested interviews with Antonyshyn and George Dolhai, the federal director of prosecutions.

Some who are fishing are Mi'kmaq claiming they have a treaty right to do so, even outside federal regulations. The Department of Fisheries and Oceans is considering handing over a far greater portion of the elver quota to First Nations by cutting the commercial allocation.

In his complaint, Giroux said he was told at a January meeting with DFO representatives that the Public Prosecution Service of Canada would not prosecute First Nations fishermen "until First Nations have a meaningful share in the elver fishery."

It's not clear from the email from Antonyshyn how many of the prosecuted elver cases involve Indigenous people, but CBC has viewed court documents that show some Mi'kmaq continue to be charged, including a number this year related to 2023 offences on the province's South Shore.

In addition, journalist Maureen Googoo of Ku'ku'kwes News last year catalogued the cases of more than 50 Mi'kmaw fishermen in New Brunswick and Nova Scotia being prosecuted for fisheries-related offences, including a number involving elvers.

In a statement issued last week, Dolhai said there is no policy dictating that Fisheries Act charges against "particular persons" be declined, but noted prosecutors "must assess the evidence and the public interest with a consciousness of the potential effects of systemic discrimination or racism."

Review of cases

The federal review, which the email said was done by general counsel from outside the Atlantic region, examined how elver cases referred by DFO from 2020 through 2023 were handled by prosecutors, and how many were ultimately pursued. The email does not indicate how many have resulted in convictions.

"I can assure you that the economic importance of this fishery in the region, and for those engaged in it, is not lost on us, nor is the impact of its closing," Antonyshyn said in his email.

Antonyshyn said prosecutors follow the Deskbook, a set of guiding principles and directives, including a chapter on the decision to prosecute. It outlines that there must be a realistic prospect of conviction and must be in the public interest.

The section on public interest includes a list of factors to consider, including the "nature and gravity of the alleged offence," the circumstances of the accused and of the victim, public confidence in the justice system, harm to the community and whether there are alternatives to prosecution.

The circumstances of the accused include whether they are Indigenous. The Deskbook says Crown lawyers must consider the impacts of colonialism, residential schools and over-representation in the justice system.

"These factors may shed light on the accused's moral culpability, and may weigh against a prosecution when considered with the totality of the relevant factors," the Deskbook says.