Nova Scotia lobster pound owner wins appeal of 'grossly disproportionate' 2-year suspension

The Nova Scotia Supreme Court has overturned a two-year ban from the lobster business imposed on a pound owner caught with lobster harvested under an Indigenous licence that does not permit selling the catch.

Justice Pierre Muise said the penalty imposed on Tyler Nickerson, owner of Fisher Direct in Shag Harbour, N.S., was overkill.

"The grossly disproportionate severity of the sanction imposed in the case at hand, and the lack of any discernible reasonable justification for it, make it such that the minister's decision was arbitrary," Muise said in a decision released Tuesday.

Muise allowed Fisher Direct's appeal, quashed the two-year ban and sent the matter back to the provincial minister of fisheries and aquaculture.

Fisheries and Aquaculture Minister Kent Smith says the department is reviewing the order and has not decided how it will respond.

"Certainly doesn't hamstring the desire to crack down," Smith said. "I'm committed to making sure that the folks in the industry know that we're taking it seriously. It's an important piece of our province's economy and we need to make sure that the folks are who are engaged in this are doing it lawfully."

The two-year ban was ordered by former fisheries minister Steve Craig after Nickerson pleaded guilty to violating the federal Fisheries Act in March 2022 and was fined $20,000.

The charge centred on an August 2018 raid of Fisher Direct and what was inside 31 crates of lobsters that arrived the day before.

Excessive punishment

Fishery officers found 47 lobsters tagged for Indigenous food, social or ceremonial (FSC) purposes that the department had previously microchipped. The FSC licence forbids sale of the catch.

Nickerson appealed the two-year ban, arguing the punishment was excessive for a single conviction from an incident that occurred more than four years ago. His lawyers said the suspension did not give enough weight to an unblemished track record before or after conviction, the significance of the court fine, the unreasonableness in timing and two-year penalty.

Muise compared the penalty imposed on Nickerson with the two-week suspension imposed by the provincial minister on Atlantic ChiCan Seafood, a pound on Cape Sable Island.

Atlantic ChiCan admitted to exporting 63,000 pounds of lobster from the United States which was falsely labeled as a product of Canada. It pleaded guilty to two counts and was fined $50,000.

"There is nothing in the reasons for the minister's decision, nor in the record as a whole, which reveals any intelligible or transparent justification for straying so far from the type of sanction imposed in ChiCan, and imposing a sanction that is many times more severe, despite the circumstances and degree of non-compliance being less severe, even considering that FSC lobster dealings were a more pervasive problem," Muise wrote.

Muise said there was no evidence Nickerson knew the shipment he had received was involved in the purchase of FSC lobster.

Owner declines comment

"It is clear and obvious that Mr. Nickerson's offending behaviour was far less serious than that of ChiCan," Muise wrote

Nickerson declined comment when reached by CBC.