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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Offences - Misc. - Protest Fishery - Abuse of Process - Offender Not Excused Because Other Offenders Not Prosecuted - Procedure - Court can Decline to Hear Evidence of Charter Breach
R v. Armstrong, 2010 BCSC 1041
Offences - Misc. - Aboriginal Rights and Defences - Overlap Between s. 14(1)(b) Atlantic Fishery Regulations and s. 7 of Aboriginal Communal Fishing Licences Regulations - Directed Verdict when Charged Under Wrong Provision
R v. Boudreau, 2010 NSSC 317
Offences - Misc. - Using unauthorized vessel to fish for crab - Definition of "Fishing" included transfer of fish from one vessel to another
R v. Frampton, 2010 Carswell Nfld 24
Offences - Misc. - Using unauthorized vessel to fish for crab - definitions of fishing - Misc - Constructive Possession of Lobster - Eye Witness Identification
R v. Thornehill, 2010 CanLII 1589
Offences - Due Diligence - Tuna - Meaning of "Doing the prohibited act prima facie imports the offence" - Sentencing - Monetary benefits - Net Benefit or Gross Proceeds
R v. Henneberry, 2009 NSCA 112
Not yet available.
Offences - Aboriginal Rights and Defences - Misc. - Failure to Designate under s. 8 of the Aboriginal Communal Fishing Regulations - Necessity of Including charge in Information - directed verdict
R v. Boudreau, 2009 NSPC 45
Offences - Misc - Sport fishing - Necessity for the Crown to Prove that the accused is fishing for recreational purposes
R v. Donnell, 2009 BCSC 1193
This case involved a number of charges against a fish harvester under the B.C. Sport Fishing Regulations. At trial, although it was established that the fish harvester had a fishing licence, the Crown did not lead evidence of whether it was a sports fishing licence, a food fishing licence or a commercial licence. The only evidence that was lead regarding the nature of the fishing was a statement made by the accused to the fisheries officer that he was on a pension and needed fish to eat. As a result the Trial Court ruled that the Crown had failed to prove an necessary element of the offence, namely that the accused was sports fishing as defined by the regulations to be fishing for recreational purposes.
Upon appeal, the Summary Conviction Appeal Court upheld the decision of the Trial Court.
Offences - Misc. - Possession of V-notched Lobster - Ultra Virus - Unconstitutionally vague
R v. Tibbo, 2009 CanLII 28877
This case involved a charge of failing to comply with a licence condition requiring fish harvesters to return to the water any lobster that have previously been marked with a V notch so as to show that they are capable of spawning. At a pre-trial application, the licence conditions were challenged as (1) being ultra virus and (2) being so broad and vague as to violate the principals of fundamental justice as guaranteed by s. 7 of the Charter.
In rejecting the first argument the Court noted that since s. 22(1)(b) of the Fisheries Act allows licence conditions to restrict the gender of fish taking of fish by gender, "it follows logically that the Minister has the legal authority to prohibit the taking of one fifth of those female lobster . . ." (para. 49).
In rejecting the second argument, the court applied the gross disproportionality test from R. v. Clay, 2003 SCC 75 to find that:
It is difficult to conclude, on the evidence before this Court, that the requirement, by licence condition, that lobster fishers return ten percent of the lobster catch (being marked breeders) to the sea to encourage conservation, as part of a demonstrated and admittedly successful conservation program, is “grossly disproportionate”. On the contrary, it accords with the DFO mandate of conservation of the fishery. [para. 54]
Offences - Misc. - unmarked gear - definition of "Fishing Gear" - amendment of Information at trial
R v. Beck, (2009) NWTSC 26
This case involved a accused charged with "[o]n or about September 19, 2006 . . . [d]id set unmarked fishing gear . . .". At trial, the Trial Judge refused an application under s. 601(3) of the Criminal Code to amend the Information to insert the words "operate or leave unattended" after the word "set". He did so on the grounds that granting the amendment would irreparably prejudice the accused who would have cross examined differently had he known operation of the fishing gear was at issue. As a result, the Court acquitted on the basis that the Crown failed to prove that the net had been "set" within the limitation period. The trial judge also acquitted on the grounds that the nets at issue were not "fishing gear" with the meaning of the s. 27 of the Fishery (General) Regulations.
Upon summary conviction appeal, all of the above described issues were raised as grounds of appeal.
With respect to the amendment issue, the Summary Conviction Appeal Court found that the applicable section of the Criminal Cord was s. 601(2) (amendments to conform to evidence) rather than s. 601(3) (cure a defect). Since s. 601 (2) was a discretionary rule, it attracted a more deferential standard of review than a decision under s. 601(3). After applying the palpable and overriding error standard, the Appeal Court refused to overturn the Trial Court's finding of irreparable prejudice.
With respect to the limitation period issue, the Court applied R. v. West Fraser Mills Ltd., (1994), 13 C.E.L.R. (N.S.) 1 (B.C.C.A.) to hold that under s. 82 of the Fisheries Act, in the absence of a certificate from the Minister of Fisheries stating the date when he or she became aware of the offence, the two year limitation period starts to run as of the date of the offence. Accordingly, since there was no certificate from the Minister entered into evidence, the Appeal Court upheld the Trial Court finding that the Crown had failed to prove the gear was set within the two year limitation period.
With respect to definition of "fishing gear", after reviewing the French text of the Regulations, the court concluded that the term "fishing gear" included fishing nets. However, given the finding on the amendment issue and limitation period issue the acquittal was not overturned.
Offences - Misc. - disclosure Aboriginal Rights and defences - disclosure (discussions between Band Council and Gov't Officials)
R v. Boudreau, 2009 NSPC 7
This case involved charges of illegal fishing for snow crab pursuant to Aboriginal Communal Fishing Regulations. When defence council discovered that the Band Council of the First Nation that that issued the Communal Fishing licences had discussed the case with several Government officials, including enforcement officers, he sought production of any reports and/or e-mails resulting from that meeting.
After reviewing the applicable jurisprudence the court held that since the Crown was unaware of any further information being in existence, this was a situation where the onus was on the defence prove that "there is in existence further material that is relevant" (para. 21). With respect to the existence of evidence, the court ruled that he accused had failed to establish the existence of any such evidence. With respect to relevance, the court held that even if documentation existed, it would not be relevant because the discussions at the meeting related to (a) what was required of the Band to prevent similar offences occurring in the future, and (b) the impact of the seizure of fish seized from the accused on the Band's seasonal fish quota.
Offences - Misc. - Definition of "Fishing"- Requirement for Dockside Observer when transferring Fish to another vessel at Sea
R v. Fitzpatrick, 2009 CANLII 2686
This case involved a father and son with long line crab fishing vessels who fished together. Since only the father's vessel was equipped with a power hauler, they surreptitiously used the father's vessel for hauling both sets of traps and then transferred some of the crab to the son' s boat to be landed by the son. Applying the broad definition of "fishing" from the Frederich Gerring Jr. (1807), 27 S.C.R. 271 and other cases, the court held that when the father was hauling his son's gear he was fishing. Since he was not licensed to fish that gear, he was fishing illegally. In addition, when he transferred the fish that he had hauled at sea to his son's boat, he breached a licence condition that require him to have a dockside observer present when offloading crab.
Offences - Misc. - Adjournment of Trial
R v. Ramalheira, 2009 NLCA 4
This case involved charges against the Master of a foreign fishing vessel under the Coastal Waters Protection Act. After several trial adjournments, the Provincial Court refused an adjournment based upon the alleged poor health of the accused in part because the medical report in support of the application was "scant at best" and given the numerous prior adjournments and the passing of time it was in the public interest to have the trial proceed. Since appeals of interlocutory orders are not normally allowed in criminal proceedings, the accused brought an application for prohibition and certiorari in aid, which was denied by the Trial Division court. Upon further appeal, with one judge dissenting, the Appeal Division court upheld the Trial Division judgement and refused the application for review. The reasons for doing so included: (1) the fact that this was a regulatory offence rather than a criminal offence where the consequences of a conviction for the accused were not as far reaching; (2) since the fishing vessel was continuing to fish in the area, there would presumably be other crew members available who could testify; and (3) "undoubtedly there are various data recordings (notably GPS) that modern vessels maintain" (para. 17).
The dissenting judge disagreed that regulatory offences should be treated differently and suggested that if Parliament intended such proceedings to proceed in rem (against the ship itself), it would have provided for such a proceeding within the legislation. (para. 41).
Offences - Due diligence - Misc. - Burden of Proof
F.H v. McDougall, 2008 SCC 53
This is pronouncement by the Supreme Court of Canada on the civil burden of proof "on a balance of probabilities". Although this is not a fisheries case, since this is the burden of proof by which an accused fisher must establish a due diligence defence, it is an important decision for fisheries prosecutions. In this case the court rejected an approach requiring a shifting burden depending on the gravity of the offence and proclaimed that "there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred." (para. 49).
Offences - Misc. - Admissibility of statements made to Fisheries Officers during Investigation
R v. Barrett, 2008 CanLII 36144
This decision involved the admissibility of statements made by four seal harvesters to DFO officers in the course of an investigation on charges related to illegally selling blue back seal pelts. In each case, the accused harvesters were contacted by telephone and then interviewed by Fisheries Officers in the front seat of DFO vehicles parked in front of their homes.
At a voire dire hearing to determine the admissibility of these statements, the court declined to rule them inadmissible as a breach of the Charter because it was not established that the harvesters were detained.
With respect to the issue of whether or not the statements were voluntary, the court noted that the Crown had the onus to prove the statements voluntary. In this regard, at trial the fisheries officer had difficulty recalling the the interviews that had occurred approximately ten years previously. In addition, there were no notes except for copies of the Charter type warnings that had been annotated and initialled. In this case some, but not all the answers were initialled. In the case of answers that were marked with a check mark but not initialled ("Do you want to speak to counsel"), the court was not prepared to accept a bare check mark as evidence that the warning had been given and waived.
On the basis of this evidence, the court ruled that the Crown had not satisfied the onus of establishing that the statements were voluntary.
Offences - Misc. - admissibility - relative remoteness or proximity of inculpatory statement to Prior illegal search
R v. Russ, 2008 BCPC 182
This case involved an aboriginal person charged with illegal harvest of eight pieces of abalone after a park warden opened a parcel that the accused had entrusted with a Parks Canada employee to deliver to his wife. After ruling evidence of the initial opening of the parcel illegal under the Charter of Rights, the court commenced a separate voire dire to determine the admissibility of an inculpatory statement made by the accused to DFO that occurred several months later. After reviewing the applicable jurisprudence, the court excluded the statement because the only reason that the accused visited the fisheries officer who took the statement was to enquire about the seizure of the parcel. Accordingly, the statement was a direct result of the prior illegal search.
Offences – Misc. – Obstruction – Search and Seizure - Search and Seizure
R v. King, 2008 PESCTD 18
Upon summary conviction appeal, the appeal court ruled that the act of waiting and watching some undersize lobster that had been discovered pursuant to a legal inspection under s. 49(1) of the Fisheries Act, "from within a warehouse, which was a limited access building that was used by a number of public agencies for various purposes" (para. 23) did not amount to an illegal search.
Offences - Misc. - Failure to Comply with Condition of Licence - Licence not Signed by Holder
R v. McLenaghan , 2008, NBCA 4
Given the wording of s. 78.4 of the Fisheries Act, the failure of the licence holder to sign his licence was not fatal to the Crown's case.
Editor's note: For a case in B.C. with a similar result see: R v. Pacific Offshore Fisheries Ltd. and Frank Gordon Melan (6 January 2005) Unreported Powell River Prov. Ct. File no. 12220C2 (digested herein). For a contrary case see: R. v. Frederick Chandler Kyle Nelson [11 May 2004] Unreported Prince Rupert Prov. Ct. No. 23728 (digested herein).
Offences - Misc. - Corroboration required of Evidence of Person Benefiting as a Result of co-operating with the Crown
R v. Wong , 2007, BCPC 297
This case involved charges of possession of abalone against an accused who was alleged to have purchased it from a known abalone poacher who had previously plead guilty to charges of abalone poaching and been sentenced on a joint submission basis after assuring the Crown that he would fully co-operate with the Crown with respect to the prosecution of others involved in the venture. His sentence did not include any jail time and his fine of $25,000 (payable at $5,000 per year) was only half of the $50,000 fine that a co-accused received. In addition, charges against his wife were not proceeded with, proceeds of crime charges were not proceeded with and income tax charges were not proceeded with.
At trial, the Crown's main source of evidence was from the testimony of the abalone poacher. The accused was called to the stand and denied having purchased any abalone and further denied that abalone found in a freezer at her father's house, where she did not live, belonged to her.
Based upon the courts review of the evidence and the cases of Vetrovic v. The Queen (1982), 67 C.C.C. (2d) 1 and R v. W.(D).,  1 S.C.R. 742, the court was unable to find sufficient corroborative evidence to support a conviction.
Offences - Misc. - Failure to Obtain a licence to approach seal fishers for the Purpose of taking Video and expressing opposition
R v. Watson, 2007 PESCAD 18
Although the regulations infringed s. 2b charter rights, the infringements were upheld as a reasonable and demonstrably justified under s. 1(para. 31).
Offences - Misc. - Circumstances when fishing will be inferred from possession -
R v. Hawkins, 2007 NLTD 12
This is a case arising out of an evening stake out operation after fisheries officers noted that a boat that was usually moored in a location was missing with a pick up truck parked close by. At 9:15 p.m. the officers observed the boat motor into a harbour and then heard a boat with a distinctive sounding engine start.
Shortly thereafter a smaller boat was observed paddling into a beach area where two individuals landed two pans on the beach. They then got into the boat and started the engine, which was observed to have the same distinctive sound as the engine heard earlier. Shortly thereafter fisheries officers had an opportunity to observe the two individuals in the smaller boat. The pans were then recovered and found to contain 250-300 pounds of very fresh (some still alive) cod.
Later that evening, the fisheries officers who observed the two individuals in the small boat with the distinctive sounding engine were able to identify the same individuals after following the pick up truck earlier observed to a house.
At trial, the individuals identified were convicted of both illegal possession and illegal fishing. Upon appeal, the appellants attempted to argue that the trial judge erred in inferring that the persons in possession of the fish also caught the fish. In denying the appeal and upholding the conviction the appeal court ruled that "while it does not necessarily follow that a person who has possession of fish also caught it, it is not true to say that it will never be so" (para. 32). In the circumstances of this case, the appeal court was prepared to uphold the inference of fishing made by the trial court.