Miscellaneous - Case Summaries
The database contains 104 case summaries relating to Miscellaneous. 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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Posting of Security for Release of Vessels Seized under Fisheries Act
R v. McNeill Fishing Ltd., (31 May 2017) Prince Rupert Prov. Ct. No. 29164-1
Section 71(2) of the Fisheries Act provides that “. . . a court may order any . . . thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount satisfactory to the Minister.” In this case, the owner of two seized prawn fishing vessels brought an application in B.C. Provincial Court for return of its vessels upon the posting of security. In support of its application it filed copies of valuation surveys of the fishing vessels. However, the Crown refused to “entertain any form or amount of security” for release of the vessels. It submitted the proper remedy for the applicant was an action in the Supreme Court based upon replevin or a Charter remedy. Unfortunately for the applicant, the court ruled that as a court of statutory jurisdiction, it could not substitute its view of what would be an acceptable form and amount of security in the absence of any suggestion by the Minister. The Court did, however, make some non-binding (obiter dictum) comments. It said:
The court has a discretion which should be exercised on judicial grounds. If the Minister can persuade the court that the circumstances are such that it would truly bring the administration of justice into disrepute, then such an order would not be made, but it is for the court to make that determination, not the Minister. Otherwise, there is no need for the court to ever be involved. It is only the Minister who can make the decision (para. 23).
It is my view that, to interpret this section in the manner the Crown seeks . . . would be in violation of the Charter. It permits the Minister to act arbitrarily for items, which may be lawfully seized for a very minor offence, to be withheld without any recourse. This clearly is not the way this section is intended to act (para. 24).
1) See the subsequent companion B.C. Supreme Court case of McNeill Fishing Ltd. v. Canada, 2017 BCSC 1598 where the Court dismissed McNeill Fishing Ltd.’s interlocutory application for replevin on the grounds that the applicant had not established irreparable harm because its loss of profits could be compensated by damages.
2) Based upon recommendations from the Canadian Maritime Law Association, when the Government of Canada tabled Bill C-32 in 2007 for a broad amendment of the Fisheries Act, it proposed amendments to s. 71(2) that would have given the court the authority to determine the security to be posted for release. Unfortunately, this Bill died on the order paper.
Offences Misc. - Fishing for Lobster During a Closed Time - Need for Expert Evidence re High-tech Aircraft Surveillance Equipment - Sentencing - Punishments that Differ Greatly Depending upon Area (S. 15 Charter)
Gavin v. R, 2017 PESC 6
This case involved a charge of fishing for lobster in a closed area. The accused’s fishing vessel was observed by a surveillance aircraft using (1) a state of the art camera, (2) a very high-powered telescope, (3) a software program that enhanced the live video, (4) radar assisted/integrated info software, (5) forward looking infrared radar, and (6) a 6,000,000 candlepower flash. The videos of this evidence were projected onto video displays, in ways that were not explained by the fisheries officer and other witnesses who gave evidence. According to the audio, the fisheries officer in the plane when viewing the video stated, “these are lobster traps”. From the trial judges view point, the high-tech video taken from miles away at the darkest part of the night was a blurry mess.
The fisheries office who introduced the high-tech evidence was not qualified as an expert witness and no other person was qualified as an expert.
At trial, the trial court convicted the accused based upon the high-tech evidence and imposed a sanction that prevented him from fishing the first 96 hours of he next lobster season in Southern Prince Edward Island. In the fishing area in Northern Prince Edward Island, a 96 hour no fishing sanction at the beginning of the season was not a significant penalty because the waters are cold at the beginning of the season and the fishing does not get good until later in the season. However, in the fishing area in southern Prince Edward Island, where the accused was licensed to fish, the situation was the opposite. The fishing was very good at the beginning of the season and poor later in the season.
Upon hearing a summary conviction appeal. The Court set aside the conviction. After a discussion of the rules regarding expert evidence and when such evidence it necessary, the appeal court ruled that the trial court should not have admitted the high-tech evidence without a qualified expert.
Although not necessary for its decision, the Court suggested that the sentence did not satisfy the requirements of section 15 of the Charter because the punishment differed greatly depending upon which region of Prince Edward Island the fish harvester came from.
Offences – Misc. – Def’n of “Fishing”
R v. McKinnell Fishing Ltd. , 2016 BCCA 472
This case was summarized by the Court of Appeal as follows:
"The appellant crabbing company was found guilty of “fishing for” crabs in closed waters, contrary to the Fisheries Act, R.S.C. 1985, c. F 14. It argues that the phrase “fishing for” in s. 2 of the Fisheries Act does not include the act of raising crab traps from the ocean floor and into the vessel, and thus the act of fishing ended the moment the traps were lifted. HELD: appeal dismissed. The summary conviction appeal judge applied the correct definition of “fishing” set out in Gerring v. The Queen. The act of raising the traps into the vessel is part of the continuous act of “fishing for” as set out in the Fisheries Act."
Editor’s note: This case was a valiant attempt to restrict the very broad definition of “fishing” contained in Gerring v.The Queen. As a result, crab harvesters who place their traps close to a fishing area boundary, can be found guilty of fishing in a closed area if the tide or wind pushes their vessel over the boundary while they are in the process of lifting the traps off of the bottom. This case could also be used to charge a fish harvester for travelling through a closed area with fishing gear on deck while travelling to an open area to fish.
At paragraph three, the Court of Appeal refers to the offence as being an absolute liability offence. Although the case did not turn on this point, this is an obvious error. This was a strict liability offence (see R. v. Saulte Ste. Marie  2 S.C.R. 1299 (SCC)).
Offences - Failure to release incidental catch of halibut - failure to accurately complete log - misleading statements to fisheries officer - Offences committed by employees
R v. Preston Grandy, 2016 CanLII 12896 (NL PC)
This is a fairly straightforward case where the accused was found guilty of all of the charges.
Offences - jigging salmon/fishing in a closed area - stay of proceedings for failing to consult prior to commencing enforcement proceeding
Aboriginal Rights/Defences - What principles of interpretation apply to Aboriginal Fisheries Strategy ("AFS") Agreements - Does an annual AFS fisheries agreement constitute justification for infringement - duty to consult with respect to enforcement actions.
R v. Martin, 2016 NSPC 14
The summary as included in the judgement is as follows:
Beginning in 1994 and in each ensuing year the federal Department of Fisheries and Oceans entered into Agreements with the Waycobah First Nation concerning, among other things, a food, social and ceremonial fishing allocation to members of that aboriginal community. These Agreements emanated from an Aboriginal Fishing Strategy created in 1993 by DFO in response to the Supreme Court of Canada decision in R. v. Sparrow.
Pursuant to the terms of the 2007-08 Agreement members of the Waycobah Band were permitted a certain number of salmon. Certain rivers were open to the FSC fishery. Certain fishing methods were permitted. An Aboriginal Communal Fishing Licence was issued, according to the terms of the Agreement.
Salmon stocks in Middle River were below spawning requirements and conservation measures were needed. A limited recreational fishery was in place there for “hook and release” only.
On October 10, 2007 the Defendants, members of Waycobah First Nation, jigged salmon from Middle River, in apparent contravention of the terms of the Licence and Agreement. They were charged with offences under the Fisheries Act.
At trial the Crown acknowledged that the Licence, by restricting aboriginal fishing in Middle River, constituted a prime facie infringement of the Defendants’ aboriginal right to fish for food in that river.
Were the individual Defendants bound, and were the actions of the Defendants encompassed by the terms of the subject Agreement and Licence?
What principles of interpretation ought to apply to modern-day agreements between governmental and aboriginal agencies, such as the subject AFS Agreement?
Where such an Agreement has been reached, does the Agreement itself constitute “justification” for the infringement, according to the Sparrow paradigm? Is the Crown never the less required to justify any infringement posed by the Licence in accordance with the criteria set out in R. v. Sparrow?
If the Crown is so required, has it justified the infringement by producing evidence of sufficient consultation and honourable conduct throughout the negotiations? In particular, did DFO give undue consideration to the interests of recreational fishers, and did DFO mislead Waycobah by employing certain terminology in the written record of negotiations?
What is the nature of the infringement of the aboriginal fishing right posed by the subject Licence? How does this inform the nature of consultations and the degree of formality?
Having regard to a 1993 DFO policy statement concerning the Aboriginal Fishing Strategy, did the Crown fulfill a particular duty to consult with Waycobah about any “enforcement action” which might be taken during the currency of the Agreement? How does this policy statement affect the charging discretion of the Fisheries Officers who apprehended the Defendants? How does the “honour of the Crown” doctrine apply to the mutual performance of the parties’ obligations under the subject Agreement.
Usual principles of construction and contract law should apply to a modern-day agreement between government and an aboriginal entity. Viewed through this lens, the Agreement binds the Defendants and applies to their actions on the date and place in question. It was validly executed by the Chief. There is no ambiguity in the terms of Agreement or the ensuing Licence. The Defendants possessed no residual right to fish. DFO at no time represented that it would not lay charges for breach of terms.
In any case where an agreement such as this has been achieved, whereby a limitation of an aboriginal right is effected, the Crown is not required to prove justification in accordance with the usual standards and criteria in Sparrow. The infringement of the right is presumptively justified by the agreement. There is, however, an enhanced duty of good faith upon the Crown (DFO) in its negotiation of an agreement which limits an aboriginal right. The presumption of justification may therefore be rebutted if the aboriginal Defendant proves that the Crown acted in bad faith in the negotiation of terms. Here the evidence discloses no such breach, nor dishonourable dealings.
In the alternative, if it is necessary to prove justification according to the Sparrow paradigm, the Crown has done so. It consulted sufficiently and behaved honourably in all dealings leading up to the signing of the Agreement
A 1993 DFO Policy statement, pertaining to the entire Aboriginal Fisheries Strategy program, includes an undertaking by DFO to consult with the aboriginal authority (Waycobah) prior to taking enforcement action. This representation, which concerns implementation of AFS Agreements, and supports the co-management objectives of the AFS program, applies to the subject Agreement. Crown did not prove that such consultation was undertaken. While DFO was not precluded from laying charges it was honour-bound to engage in a bona fide consultation before doing so. The apprehension of the Defendants and the seizure of their gear had to be undertake without delay. The Defendants were not charged until months later; some form of enforcement consultation should have been undertaken in the interim.
There was a flagrant breach of the terms of the Licence. The Defendants have no substantive defence. However the failure to consult about enforcement is sufficiently serious to warrant a stay of proceedings.
This is a fairly bold decision that has created new law with respect to both the test for determining if an AFS fishing agreement constitutes justification for an infringement and with respect to the consequences of failing to consult with respect to enforcement actions. It contains some interesting discussions of the legal nature of AFS fishing agreements and offers some suggestions on what would be considered adequate consultation in certain circumstances.
It is currently under appeal.
Offences - Misc. - Meaning of "accurate hail" - vagueness
R v. Henneberry, 2016 NSPC 6
This case involved a charge of failing to hail the accurate round weight of ground fish as required by the condition of a fishing licence. The Crown gave evidence that the round weight of the catch of halibut that was not hailed was 28 per cent of what was hailed or 22 per cent of the landed weight (para. 42.). The evidence of the captain at trial was that it was not possible to actually weigh the undressed fish at sea. However the Crown gave evidence that it was aware of one vessel that did so. It also gave evidence that some vessels did volumetric measurements that were reasonable accurate this involves loading tubs or tanks to a certain point where weights are known.
At trial the defence argued that the licence condition requiring the vessel operator to hail the accurate round weight was unconstitutionally vague because it gave no direction on what degree of variance from the true weigh is required.
In rejecting the defences the court summarized its reasons as follows:
137) I find that the word “accurate” in the context of a condition of a fishing license authorized by s. 22(1) of the Fishery (General) Regulations means “precise, careful”. I further find that these words are not synonymous but rather express two aspects to the meaning of the word accurate; first, precision in completing the task; and second, the exercise of care in completing the task. When considered together in relation to the condition 6.6.1(f) of the accused’s fishing license, I find that the condition requires that the vessel operator make as precise a report of the round weight of the fish onboard the vessel by individual species as can be accomplished with the exercising of care in completing the task. I find that this is consistent with the Court of Appeals use of the term reasonable accuracy.
138) The exercise of care involves consideration of factors including the method and equipment used in completing the task and the captain’s knowledge and experience.
139) In my view, this determination of the actus rea of the offence does not diminish the defence of due diligence or mistaken belief of fact set out in s. 78.6 of the Fisheries Act.
140) Based upon the Court’s finding of the meaning of the term “accurate hail” the Court is satisfied that condition 6.6.1(f) in the fishing license of the Ivy Rose delineates, with sufficient clarity, a zone of risk and gives vessel operators, with a like requirement to that of the Ivy Rose, notice of the conduct which will make them liable to being charged. I am not persuaded that the provision is constitutionally invalid due to vagueness. The Defence motion for a declaration of vagueness and for a finding of a breach of section 7 of the Charter for vagueness is denied.
Search and Seizure - S. 49 right to Inspect
Misc. - Obstruction by refusing to allow inspection and refusing to identify self
R v. Strickland, 2016 CanLII 2781 (NL PC)
This case involved a fisheries officer and two fisheries guardians who were conducting a patrol in a Zodiac when they observed the accused in his dory. Although they were some distance away, they thought they observed him fishing. The fisheries officer motioned for the accused to come over to the fishing vessel, but instead the accused drove his dory on to a nearby beach in front of his cabin. The accused gave evidence that he was not fishing at the time, but was filling his engine with fuel. He said he observed the request to go over to the fisheries vessel, but felt that because of the sea conditions, strong current and shoals close by, it was not safe. Instead he motioned for the fisheries office to conduct the inspection on the beach where he had previously seen a similar Zodiac land on a previous occasion. At a later time, the accused refused to provide the fisheries officer with his name. As a result of these actions, the accused was charged with obstruction under s. 62 of the Fisheries Act.
In deciding the case, the Court reviewed the obstruction provision of both the Criminal Code and the Fisheries Act.
The Court also reviewed the inspection powers under s. 49 and concluded that it incorporated the traditional subjective-objective test (para. 39), which it described as follows:
"[I]n determining whether a fishery officer or guardian was carrying out duties and functions pursuant to section 49 of the Fisheries Act, the officer or guardian must have a subjective belief that there is something in the place to be searched in respect of which the Fisheries Act or regulations apply. The search must be for the purpose of ensuring compliance with the Fisheries Act or regulations. In addition, the officer’s or guardian’s belief must be objectively reasonable in the circumstances."
Given the fact that Fisheries Offences are strict liability offences, the Crown does not have to prove that the accused intended that his act would hinder or obstruct. However the Crown does have to prove the the act of obstruction was purposely committed. Once the Crown has proved the actus reus (prohibited act) it is open to the accused to prove he or she took all reasonable steps to avoid obstructing or hindering the fisheries officer.
After reviewing the law,including the burden of proof and the facts, the Court rejected he Crown's evidence that the accused was fishing at the time he was observed. Accordingly they did not have an objective belief to support a s. 49 inspection. As a result the accused did not have a lawful obligation to stop the dory for an inspection.
Given the fact that an inspection was not lawful under s. 49, it followed that the accused's subsequent refusal to identify himself was also lawful.
Given all of the findings, the Court found that the actus reus (prohibited act) of the offence was not made out and acquitted the accused.
Offences - Misc. - Wasting of Fish
R v. Echodh, 2015 SKPC 76
This case involved a fish harvester commercial ice fishing in Saskatchewan. He took the most profitable fish (walleye) to market but left the less profitable fish (whitefish and pike) on the ice mixed in with fish offal. After rejecting much of the evidence presented by the accused, the court convicted him under s. 92(C) of the Fisheries Regulations of wasting fish. His sentence included a modest fine and suspension of his commercial licence for one year.
Offences - Misc. - Admissibility of Statement to fisheries Officer
R v. Dempsey, 2015 NUCJ 15
This case involved a fishing vessel that was observed by a Fisheries Officer in a plane to have fishing gear in a closed area. The fisheries officer conducted an interview of the captain of the fishing vessel by radio. The accused captain attempted to exclude the evidence at trial on sections 7 and 10 of the Charter.
The court rejected the Charter defence based upon the following findings:
1)The accused was informed that he was being investigated for a violation under the Fisheries Act and knew that his gear had been found in a closed area and that he could be charged under the Fisheries Act as a result. He knew all of this before receiving a caution and before his rights were read to him;
2) The accused's jeapardy did not change at any time during his interaction with the fisheries officer;
3) From the outset, the accused was advised of the reason for the questions being asked and confirmed he understood;
4) The accused was told he could speak to a lawyer and would be provided with a telephone directory and privacy;
5) The accused advised that he did not want to talk to a lawyer;
6) Without the benefit of legal advice the accused gave the fisheries officer an explanation of why the fishing gear was located in a closed area.
Offences - Misc. - Application to Quash a Ticket Information
R v. Ai, 2014 BCSC 1350
In this case, a provincial court judge quashed a ticket information on the grounds that s. 79.7(2) of the Fisheries Act requires both the summons and the information portion of the ticket comply with all of the s. 79.7(2) requirements. In doing so, the provincial court judge found that there was an ambiguity in the wording of s. 79.7(2) and resolved the ambiguity in favour of the accused.
In allowing the Crown appeal and setting aside the acquittal, the summary conviction appeal court found that the trial judge misapplied the principals of statutory interpretation.
Offences - Misc. - Selling and offering fish for sale (sablefish and halibut) which were not caught under the authority of a fishing licence - Failing to keep an electronic monitoring system operational - Catching halibut during a closed time - def'n of "fishing"
R v. v. Steer, 2013 BCPC 163
This is a fairly lengthy decision involving a large number of counts of allegations of intentional illegal fishing. The accused was convicted of all but two of the counts primarily on the basis of texts taken from a cell phone in his possession at the time of arrest.
Judicial Review Crown Liability - Aboriginal Rights and Defences - Availability of Remedy of Declaratory Judgement stating First Nations persons were to be prosecuted without dispensation for violations of Aboriginal Communal Fishing Regulations - Offences - Misc. - Dispensation of outside charges against other persons does not render prosecution of participatns in protest fishery and abuse of process.
R v. Armstrong, 2012 BCCA 242
Offences - Misc. - Use of Net to Catch Atlantic Salmon - Post Offence Conduct - Assessing Credibility
R v. Legge, 2011 CANLII 54512
Aboriginal Rights and Offences - Offences - Misc. - Possession of Fish for Purpose of Shielding Illegal Fishing Activities of Non-Aboriginal
R v. Lee, 2011 SKPC 2
Offences - Misc. - Fishing in Unauthorized Area - Aerial Surveillance - GPS Evidence - Proof fishing under Aboriginal Commercial Fishing Licence
R v. LaPorte, 2011 NSPC 36
Not yet available.
Offences - Misc. - Prawn Fishing During a Closed time - Validity of Variation Order - Use of Signs to Mark Boundaries - Subdelegation to Regional Director
R v. McDonald, 2011 BCPC 75
Offences - Misc. - Obstruction
R v. Keough, 2011 CanLII 104
Offences - Misc. - Mere Presence At the Scene of the Crime Does Not Prove Culpability
R v. Shears, 2011 CarswellNfld 224
Offences - Misc. - Possession Without Knowledge of Contents of Net - Obstruction by Fleeing - Assessment of Credibility
R v. Lavhey, 2011 CarswellNfld 239
Offences - Misc. - Fishing in a Closed Area - Jigging
R v. Beck, 2010 CanLII 68434 (NL PC)
Not yet avaiable.