R. v. Fred Elliott – 74 Year-Old Stz’uminus Elder’s Sentence in Unlawful Fish Sale Case Substantially Reduced on Appeal

On February 25, 2014, Fred Reid Elliott, a 74-year-old elder of the Stz’uminus First Nation, was arrested and placed in handcuffs, and his boat and truck were seized, for selling prawns to an undercover Department of Fisheries (DFO) officer without a commercial licence. The arrest was the culmination of a nearly 7-month investigation that DFO insultingly referred to as “Operation Guppy”.

During Operation Guppy, undercover DFO officers goaded Fred into selling them 42 lbs of halibut for $210.00 and 108 lbs of prawns for $540.00. The sale of the halibut and prawns was spread out over the course of the investigation and four separate undercover “buy scenarios”. DFO’s investigation and arrest of Fred ultimately involved coordination with both the Ladysmith RCMP and the Canadian Coast Guard and, all totalled, 19 officers from the three federal agencies were involved at considerable tax payer expense. Prior to February 25, 2014, Fred had never been charged with or convicted of a fisheries related offence. In fact, he had never previously received even a warning or a ticket from a fisheries officer before that date, despite having fished his entire life.

Fred accepted responsibility for his actions and, on October 7, 2015, pled guilty to selling the halibut and prawns without a commercial licence.

Notwithstanding his age, his lack of a prior related record, his early guilty plea, his First Nations status and the fact all the halibut and prawns were caught legally pursuant to his constitutionally entrenched Aboriginal Rights, on January 21, 2016 Fred was sentenced to a $2,000.00 fine and ordered to forfeit the $18,000.00 put up as security for the return of his aluminum fishing punt.

Although Crown prosecutor, Norman Fraser, had asked the Court to fine Fred $5,000.00 and order forfeiture of the entire $27,500.00 security deposit Fred had posted for the return of his boat and truck, Woodward and Co. lawyer, Matthew Boulton, who represented Fred at the sentencing hearing, was still shocked and dismayed by the $20,000.00 sentence. Therefore, upon leaving the courtroom on January 21, 2016, Matthew immediately informed Fred that he would be appealing Fred’s sentence for free.

The appeal was heard on June 20, 2016. On appeal, Matthew argued the sentencing Judge failed to properly consider and apply the principles of proportionality and consistency while overemphasizing the need for specific and general deterrence. Matthew submitted these errors led to the Judge imposing a sentence that was demonstrably unfit and a substantial and marked departure from the sentences imposed on similar offenders committing similar crimes. The Honourable Justice Keith Bracken ultimately agreed with Matthew’s submissions, finding the sentencing Judge overemphasized the need for deterrence and imposed a sentence that was disproportionate to the gravity of the offences. On this basis, Justice Bracken reduced Fred’s sentence substantially by: vacating the $18,000.00 forfeiture order; refusing to substitute forfeiture of the $18,000.00 with forfeiture of the actual boat as requested by the Crown prosecutors; and ordering that Fred pay $2,500.00 to DFO and provide $2,500.00 worth of fish to the Stz’uminus First Nation’s schools and health centre. The original $2,000.00 fine was also left undisturbed.

Shortly after the appeal, the Aboriginal Peoples Television Network aired a story on Fred’s case. That story can be viewed here.