By Licence Holders and Employers - Case Summaries
The database contains 7 case summaries relating to By Licence Holders and Employers. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Offences – Due Diligence - Fisheries Act s. 78.4 (rebuttable presumption that offence committed with knowledge or consent of licence holder) – Whether due diligence component -
Griffin v. R, 2017 PESC 11
Section 78.4 of the Fisheries Act provides that: “In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person in respect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations, whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused [emphasis added]”. The issue in this case was whether this reverse onus provision imported a due diligence requirement.
After reviewing the relevant authorities, including authorities regarding the standard of review, the court concluded that s. 78.4 does import a due diligence requirement and upheld the conviction of the summary conviction trial court.
Although not entirely clear from the reasons, it appears that the required due diligence was with respect to the training and supervision of the crew.
Offences by Licence holders and Employers
R v. Boyd, 2010 NSPC 5
Offences - By Licence Holders and Employers - Due Diligence Requirement
R v. Kukuljan and Emil K. Fishing Corp., 2008 BCCA 490
This case involved charges against the the owner of a salmon fishing vessel for unlawfully retaining incidental catch of sockeye and coho salmon. Since the owner of the vessel was not aboard at the time of the offence, the owner was charged under both s. 78.3 of the Act with respect to liability of employers and s. 78.4 with respect to the liability of licence holders. In applying these sections, the trial court followed F.A.S. Seafood Producers Ltd.  B.C.J. 1625 for the proposition that the requirement that the licence holder or employer establish that the offence was committed without his or her knowledge or consent imports a due diligence or reasonable care defence. In applying this test, the trial court found the owner/licence holder had exercised due diligence by ensuring that: (1) His boat had perfect gear; (2) the crew were instructed to take care not to catch Sockeye or Coho; The crew were instructed to watch what they were doing and keep the regulations; (3) the skipper had been told to fish and do everything the way it was supposed to be. The court also relied upon R. v. Harris  N.S.J. 484 (N.S.C.A.).
Upon summary conviction appeal (link), the acquittal of the trial court was upheld on the following basis:
The Gulf of Georgia case [(1979) 10 B.C.L.R. 134] points out that what may be appropriate safeguards in “bycatch” violations in fisheries cases may be different or inadequate for cases involving oil spills and other significant toxic environmental harm. That is, the steps taken to establish due diligence will depend on all the circumstances including the magnitude of the damage in the likelihood of a mistake (or breach). In my view, while conservation of fish stocks is very important, the kind of “mistake” or infraction at issue in this case simply cannot be compared to the effects of toxic spills into waters where both fish and human health are significantly jeopardized. [para 40]
Upon further appeal to the British Columbia Court of Appeal, the court focused on the following issues:
(1) To establish a due diligence defence, does the Defendant have to establish the mechanism of the failure; and
(2) Is the corporate vessel owner vicariously liable for the negligence of its vessel operator?
With respect to the first issue, after reviewing the applicable authorities the court concluded that the defence does not have to demonstrate the precise mechanism by which a prohibited act occurred. It only has to demonstrate that it exercised due diligence "to avoid the specific type of occurrence giving rise to the charges against it" (para. 19). In this particular case, the accused was not required to show the mechanism by which the retention of prohibited species occurred. It did, however, need to show that it had in all respects exercised due diligence to prevent the catching and retaining of prohibited species. The court also distinguished the Gulf of Georgia case cited above as a case where the consequences of employee negligence were much more serious.
With respect to the vicarious negligence (the second issue), the court relied upon R. v. Saulte Ste. Marie (City), 1978 2 SCR 1299 to reject the argument that a company is vicariously liable for the acts of its employees unless it can show that the employees exercised due diligence. It did, however, state that if it had been established that sufficient authority had been delegated to the captain so as to constitute him as a guiding or directing mind of the corporation, his specific actions would also have to be scrutinized by the court.
Offences - By licence holders - Lobster fishing with untagged pots -Prohibitions - First Five Days of Lobster Season
R v. Grandy , 2005 NLTD 40
The accused was a commercial lobster fisherman who was caught hauling 14 unmarked lobster pots intermingled with his tagged pots. He plead guilty and a joint submission was made requesting:
A fine of $2,000;
Forfeiture of the 14 unmarked lobster pots;
No forfeiture of his boat, motor and contents; and
Prohibition from fishing for the first five days of the next lobster fishing season.
In sentencing the accused, the trial court imposed items 1 - 3 above, but did not impose a prohibition from fishing. Upon appeal, the appeal court reviewed the law with respect to joint submission of counsel and imposed a fishing prohibition based upon the decisions of R. v. Oldford (digested herein) and R. v. Cluet (2002), 217 Nfld. & P.E.I.R. 87 (NLTD).
Offences - By Licence Holders and Employers - Liability of Company - Liability of Directors - lobster fishery - Offences misc. - circumstantial Evidence
R v. T.&T. Fisheries Inc.,  P.E.I.J. No. 74
In a complicated fact situation involving a company owned fishing vessel that was illegally fishing for Lobster while the sole director was not aboard, based upon the rule in Hodge's case (1838), 168 E.R. 1136 and circumstantial evidence produced by the Crown, the court was not prepared to convict the director for his personal involvement. The court was also not prepared to convict the licence holder on the basis of s. 78.4. It was, however, prepared to convict the corporation under s. 78.3 and the director of the corporation under s. 78.2.
Offences - By licence holders (s. 78.4) - Crab fishing in closed area
R v. Hynes , 2004 CanLII 48134
The accused was the holder of a licence allowing a fishing vessel to fish for snow crab in a defined area. The fishing vessel was observed in a area outside the defined fishing area with crab fishing gear hanging over its side. As well, buoys bearing the CFV number of the fishing vessel were found in numerous locations outside the defined fishing area. When pulled, several of the attached traps had tags assigned to the accused.
At trial, the accused called no evidence and argued that the Crown had failed to prove the identity of the accused because there was no evidence that he was on the boat.
Held: Based upon s. 78.4 of the Fisheries Act, and the absence of any evidence from either the accused or the Crown's that the activities of the fishing vessel were carried on without the knowledge or consent of the licence holder, the court convicted.
Offences by Licence Holders
R v. Forsey , 2003 NLSCTD 57
This was a companion case to R. v. Cox 2003 NLSCTC 56 (digested herein). In addition to the issues raised in the Cox decision, the court also dealt with the issues of whether or not the accused could be found guilty by virtue of s. 78.3 of the Fisheries Act (Offences by Employers) and s. 78.4 of the Act (Offences by licence holders). Given the absence of any evidence that the offence was committed without the knowledge or consent of the licence holder, the court applied R. v. Petten (1995) 129 Nfld. & P.E.I.R. 37 to uphold the trial courts conviction.