YARMOUTH, N.S. – A provincial court judge had harsh words for the crew of a fishing vessel that mistreated and killed a young seal on their boat last year, as he handed down fines to all three men and also a six-month groundfishing prohibition to the vessel’s captain.
“It’s in times like this, when I hear facts that are as disturbing as this, that I have to remind myself that restraint is a principle that must be applied in sentencing,” said Judge James Burrill during the Feb. 13 sentencing hearing in Yarmouth provincial court.
The three accused – Mark Allen MacKenzie, Jay Alexander Jenkins and Brendon Douglas James Porter – all entered guilty pleas, through their lawyer, to section 22(7) of the Fishery General Regulations. That section refers to returning incidentally caught fish, shellfish and marine animals back to the water without harm.
The matter had originally been slated for trial on Feb. 13 but change of pleas were entered. Of the three men, only Jenkins was in attendance when the sentencing took place. He declined the opportunity to speak when it was offered to him by the judge.
The incident involving the seal, which occurred during a groundfish trip, came to light in January 2017 when MacKenzie posted a video to Facebook and tagged his crewmembers in the post.
The video – which was soon after deleted from Facebook following a public outcry – showed a seal being taunted and poked with a buoy and kicked. Comments like, “Good seal, good seal,” could be heard, and someone also saying, “I want to play tug-of-war with him,” as attempts were made to have the seal grab hold of a rope with its mouth. Someone can then be heard saying, “Let’s kill it,” and asking where the “big machete” is. The men were laughing and everyone encouraged the mistreatment to continue.
MacKenzie, the vessel’s captain, was fined $7,500 and Judge Burrill ordered a six-month prohibition from the groundfishery from Jan. 1 to June 30, 2019. The Crown sought a higher penalty for MacKenzie because of previous fishing convictions.
Jenkins, who appeared in the video and also in photos holding the bloodied seal, received a $3,500 fine. Porter, who the court said videotaped the interaction, was fined $2,500.
A concerned citizen, Caitlin Buchanan, had contacted DFO after the video and photos were posted to Facebook to alert the department to the incident.
Judge Burrill called the treatment of the seal “deplorable” and said it required denunciation.
“Living in southwest Nova Scotia, we know that seals can be a nuisance to fishermen. They interfere with gear, they interfere with lobster traps,” he said. “But make no mistake, this is not an excuse to treat them with brutality or what seemed to be in this case, as described by the Crown, some twisted type of entertainment for the captain and crew of this vessel.”
Even defence lawyer Mitchell LeBlanc summarized the incident as a “terrible incident” and called it “simply inexcusable.”
“I would imagine the vast majority of fishermen in our area would not hesitate to completely disassociate themselves from this type of behaviour and in no way condone this type of behaviour,” LeBlanc said, saying the redeeming factors may be that this was a young crew that no longer fishes together and seals are not an endangered species. Still, he said, “This is simply an egregious act towards a defenceless animal.”
The fines for Jenkins and Porter were a joint recommendation by the Crown and defence. The sentence for MacKenzie was not a joint recommendation, with LeBlanc suggesting that it should be up to the fisheries minister, not the court, to determine if a fishing prohibition was justified.
However, federal Crown attorney Alex Pink said the higher penalty for MacKenzie – who he said had displayed no remorse about the incident – was due to the fact that he has a significant fisheries record.
“As of March 30, 2017, Mr. MacKenzie had $37,668 in outstanding fishery fines,” Pink said. “I don’t intend to get into his record... however, there are probably at least a dozen fisheries violations over the last 10 or 15 years that are serious and show a blatant disregard for the Fisheries Act.
About this specific incident Pink said, “There was a lot of public outcry through Facebook and other social media. A message really needs to be sent that this type of behaviour is simply not going to be tolerated.”
Judge Burrill agreed, saying about MacKenzie, “He was the captain, he is the one that bears a responsibility for what takes place on his vessel.”
The men have been given until Dec. 18, 2018 to pay the fines, although they can ask for an extension if required as that date approaches. The court also ordered forfeiture of two confiscated cellphones that had the video and photos on them.
Following the guilty pleas the Crown offered no evidence on a second fisheries charge and the charge was dismissed.