Stay of prosecution puts sea lice issue back into realm of politics

A special prosecutor’s findings, released this week, highlight concerns that sea lice from fish farms are harming wild salmon stocks on the B.C. coast.

Vancouver lawyer Bill Smart was brought in to weigh the sea lice problem owing to some unusual legal circumstances.

Scientist Alexandra Morton has been blaming fish farms for contributing to the decline of wild pink salmon for several years.

As part of the crusade, she went to court and laid a private information against the provincial and federal governments and one fish farm. Her case alleged they were collectively guilty of releasing sea lice into the wild pink salmon habitat in the coastal Broughton Archipelago.

Her naming of the provincial government as a defendant invoked the appointment of an independent special prosecutor.

Smart was appointed in June of this year and set about weighing submissions from Morton and the defendants.

To better sort through the technical and scientific evidence, he retained an outside expert—Dr. Frederick Whoriskey, of the Atlantic Salmon Federation, based in New Brunswick.

Whoriskey reviewed the evidence, from here and around the world, and returned a report that pretty much vindicated Morton and her complaints.

“Ms. Morton and her colleagues have carefully and diligently executed their scientific work,” he wrote in a passage not calculated to endear him to her critics on this coast.

“They have used credible experimental and data analysis methods, regularly subjected their results to peer review, and have presented their results for scientific scrutiny through publication in established scientific periodicals. This is the globally accepted procedure for the conduct of good science.”

He wasn’t blind to the limitations of her work, acknowledging “technical problems or uncertainties” and the possibility of “other factors” in the decline of pink stocks. Still, “the amount and consistency of evidence . . . convincingly supports the allegation that lice contributed to the observed wild pink salmon decline in this region.”

Over to you, Mr. Special Prosecutor.

Smart could scarcely dispute such a persuasive assessment from his own expert, and he didn’t.

“It appears to us that there is validity to Ms. Morton’s assertions that sea lice from fish farms are having a deleterious effect on the pink salmon population in the Broughton Archipelago,” he wrote in his assessment of the evidence in case.

This was not the same as saying she’d proven her claim in a court of law. It did mean that “the public interest would favour a prosecution.”

Note the tense: “Would.”

Before deciding to take the case to court here in B.C., prosecutors are first required to consider whether there is a substantial likelihood of conviction.

It’s a tough test, designed to prevent abuse of process and overloading of the courts. It means weighing evidence, motive and the law.

And as Smart turned his mind to those considerations, he recognized significant obstacles.

The big problem was with the law itself. The Fisheries Act and its regulations forbid the “release” of foreign species into the marine habitat without a proper licence.

But was the release of sea lice in this instance really an intentional and deliberate act?

“One can only release something if one has control of it in the first place,” Smart concluded. “It is not apparent that the fish farms are in control of the sea lice that enter and leave their pens.”

He could haul the defendants into court, but they weren’t likely to be convicted.

“Mr. Smart has determined that despite the public interest, there is no substantial likelihood of conviction,” reported the attorney-general’s ministry in the official summary of his findings, released Wednesday. “As such the prosecution should be discontinued and a stay of proceedings issued.”

The stay was greeted as a victory by the fish farming industry, a disappointment by Morton and her supporters.

But it actually tosses the issue back where it belongs, into the realm of politics and public policy.

Smart himself seems to have acknowledged as much.

For in reaching the decision not to proceed, he noted that the accused fish farm could readily argue that it had “cooperated with the government and obtained advance approval of its operations.”

He further observed that the criminal standard—proof beyond a reasonable doubt—“is not a standard one would expect governments to apply when addressing the potential environmental consequences of fish farms and formulating policy with respect to their operation.”

No need to involve the courts. If governments came to share Morton’s concerns, they could act to protect the public interest by cracking down on the fish farms directly.

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