This case involved a fish harvester who was charged with failing to comply with a term of his licence requiring his herring net to be set one fathom below the surface. At trial, a fishery guardian testified to finding the net in question attached to some buoys and floating less than one fathom below the surface. He also testified that one of the ropes was weaved through the net and "indicated that this would cause the net to float closer to the surface". He also agreed that "the location of the rope might suggest that someone had tampered with the net after it was set in the water."

The accused took the stand and gave evidence that the net was set at least one fathom below the water. He also testified that the the rope that the guardian observed weaved through the net was not placed there by him.

Applying the R. v. W. (D.) test, the court concluded that although it was possible that the accused negligently or purposefully shortened the ropes attaching the net to the buoys, the evidence of the accused caused it to have a reasonable doubt. Accordingly, an essential element of the offence was not proven and an acquittal was entered.

This case involved a shrimp trawler who was charged with failing to maintain a distance of at least one-half nautical mile between his vessel, including any mobile gear attached thereto, and any previously set fishing gear. Based upon circumstantial type evidence, the court was prepared to find that the fisher had failed to keep his shrimp trawl at lease one half mile from any previously set gear (para 27-9). However, one of the elements of the offence that the Crown was required to prove was that the accused was using "mobile gear" as defined in the regulations. Since the accused was "not asked any questions which might indicate whether or not the gear he was using would fall within the definition of mobile gear found in the AFR [including an otter trawl or purse seine] and the Crown has not presented sufficient evidence to establish beyond a reasonable doubt that the gear Mr. Caines was using fits within that definition", the actus reus was not proved and the accused was acquitted.

This case involves a statement of claim issued in the Prince Edward Island Supreme Court by the Government of Prince Edward Island against the Government of Canada claiming a series of declarations with respect both to the constitutionality of s. 7 of the Fisheries Act and a the validity of a series of historical management decisions of the Minister of Fisheries.

In refusing to strike the statement of claim, the trial court (2005 PESCTD 57) made a number of findings including the following: (1) It is not "plain and obvious" that the words "absolute" in s. 7 of the Fisheries Act are unconstitutional; (2) the jurisdiction of the Federal Court does not oust the jurisdiction of the Superior Court; and (3) With respect to the public trust argument, "[i]f a government can exert its right, as guardian of the public interest, to claim against a party causing damage to that public interest, then it would seem that in another case, a beneficiary of the public interest ought to be able to claim against the government for a failure to properly protect the public interest (para 30).

Upon appeal the Government of Canada, the Prince Edward Island Court of Appeal the court held that

The part of the statement of claim with respect to the constitutional challenge to s.7 of the Fisheries Act, supra is struck out as disclosing no reasonable cause of action. The claim for breach of the Terms of Union also discloses no reasonable cause of action. The Supreme Court of Prince Edward Island has no jurisdiction to hear the s.36 constitutional claim, the s.15 Charter claim or the breach of public trust claim. The appeal is therefore allowed.

Leave to appeal to the Supreme Court of Canada was denied at [2007] S.C.C.A. no. 97 without reasons.

This case involved charges against a person who was observed removing three salmon from a net in an area closed to fishing. At issue, was the definition of the term "fishing" as defined in the Fisheries Act and subsequent jurisprudence. At trial the accused was convicted of possession of fish, but acquitted on the charge of fishing. The grounds for the acquittal on the fishing charge were that there was no evidence that the accused was "part of any ongoing venture or that he was actually connected in any way to others who might have been" (para 6). The acquittal was upheld by a summary conviction appeal court.

Upon further appeal to the Newfoundland and Labrador Court of Appeal, the acquittal was overturned on the following basis:

Fishing, as was underscored in Gerring and in the many cases which have followed it, is comprised not of a single act but of many discrete ones. Among those many acts is included, to use the language of Sedgewick J., “taking [fish] out of the water and obtaining manual custody of them”; which is precisely what Mr. White did in the instant case. That he was or was not the owner of the net, or a coventurer with the person who did own it, is irrelevant. [para. 16]

This case involved a charge against a crab fish harvester who was caught hauling his crab traps more than once per day contrary to the conditions of his crab licence. During final argument after electing to call no evidence, defence counsel objected to the charge on the grounds that it did not disclose an offence known to law. In particular, it failed to refer to s. 22(7) of the Fishery General Regulations [failure to comply with condition of licence] and erroneously included a reference to s. 22(1)(h) [authority of Minister to specify licence conditions]. The trial judge then refused a Crown application to amend the Information and acquitted the accused.

Upon summary conviction appeal, the court allowed the appeal and remitted the matter back to trial. In doing so, the court held as follows:

1) Since Crown did not object and the court granted leave, the trial court did not err in allowing an objection to the form of charge after the Crown had closed its case;

2) Although the defect should have been characterized as a defect in substance rather than form, the trial court did not err in deciding the wording of the charge was defective;

3)Since the delay caused by re-opening and adjourning the case would have caused prejudice, the trial court did not err in refusing an amendment; and

4) Since the charge was sufficient to inform the accused of the charge against him (fishing contrary to the terms of his licence) and the unlawful act (hauling his trap more than once per day) the charge was not nullity or fatally flawed (see Criminal Code s. 581).

This case involved charges of offering to sell sablefish not caught under the authority of a aboriginal fishing licence. Given a total delay of 63 months and an unjustified delay of at least three years along with prejudice to the accused's security of person, a stay of proceedings was granted.

This case involved a charge of failing to have a revival tank operating as required by a condition of the vessel owner's fishing licence. The primary defence was that s. 22(7) of the Fishery (General) Regulations requiring compliance with conditions of licences was both outside the scope of the regulation making power granted to the the Minister by Parliament and an impermissible sub delegation of the power to make regulations. After reviewing the legislation and the arguments of counsel, the court rejected the defence argument primarily on the grounds that the very broad scope of power to make regulations granted by s. 43 of the Fisheries Act "to make regulations for the 'proper management and control of a fishery' plainly includes the making of a regulation that requires that licence holders comply with its conditions" (para 35).

Editors Note: For a similar decision, see also R. v. Norum (23 Feb. 2004) Surrey Prov. Ct. Registry No. 128018-1 and R. v. V.R. Pacific Offshores Ltd. digested herein. For a contrary case see R. v. Klyle Nelson digested herein.

This case involved an accused who was charged with a number of offences which included an averment that he was fishing under the authority of a fishing licence. At trial the Crown entered into evidence an unsigned certified copy of a licence produced from the records of the D.F.O. licence unit. This licence contained a term that it was not valid unless signed by the licence holder, vessel owner or operator. In addition the Crown led evidence from a fisheries officer who inspected the original licence aboard the vessel and was satisfied with it, but did not say whether or not it was signed at the time of inspection.

At the conclusion of the trial, the Defence argued, amongst other things, that the Crown's case should be dismissed for lack of proof that the offence took place under the authority of a licence. The court rejected this argument based upon a presumption of regularity and a presumption that the licence holder complied with the regulations and signed it. It ruled that in absence of evidence to the contrary, the Crown need only prove that the licence was issued to the vessel owner.

With respect to proof that the vessel was fishing in a closed area, the court rejected evidence of location based upon the pilot house log and fishing logs because inconsistencies between the two showed that they were not reliable. In addition, the Crown failed to enter evidence that the area in question was closed to fishing.

Editor's note: For a contrary case on the proof of validity of licence issue, see R. v. Frederick Chandler Kyle Nelson [11 May 2004) Unreported Prince Rupert Prov. Ct. file No. 23728 (Seidemann III Prov. Ct. Judge) (digested herein)

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.

This case involved charges of fishing during a closed time against 40 commercial fishermen who were protesting the refusal of the Department of Fisheries and Oceans (“D.F.O.”) to open the fishery. At a sentencing hearing, the court extensively reviewed the evidence regarding the extremely large run size and the inequities surrounding the Aboriginal Pilot Sales fishery that was allowed to fish ahead of the commercial fishery.Upon completion of this review of the evidence, the court granted an absolute discharge.

Upon being appealed by the Crown, the court indicated that although some of the trial court's comments regarding the aboriginal fishing strategy were unnecessary, given that this was a protest fishery with advance notice being given to the authorities, no risk of the actions being repeated by the offenders and the co-operation of the offenders with the authorities, the absolute discharges were upheld.

This case involved a prosecution under the Fisheries Act. In the course of a pre-trial application by the defence for disclosure of Crown documents, the matter was adjourned so that the parties could exchange and file written submissions. Although written submissions from both parties were filed, for some unexplained reason only the Crown's submissions were provided to the judge hearing the motion. In the course of the subsequent hearing it became apparent that the judge had not received the written submissions of the defence and attempted to remedy the situation by hearing oral submissions from counsel for the defence.

Upon receiving an adverse ruling on the disclosure motion, the defence brought an application for certiorari of the ruling and an order of mandamus directing that the disclosure application be heard afresh before a different judge.

After reviewing the evidence and the applicable authorities, the court concluded that "an informed person viewing the events realistically and practically would concluded that in the circumstances that occurred here there was an appearance of bias" (para 39). Accordingly the requested remedies of certiorari and mandamus were granted.

This case involved an aboriginal fisherman who delivered five pickerel caught without a commercial fishing licence to a fish plant to the account of a different fisherman holding a commercial licence. At trial, the the court gave the accused the benefit of the doubt with respect to whether or not he was "selling" the fish because he had directed the money be paid to a person other than himself.

Upon summary conviction appeal, the court held that the trial judge had "placed undue restriction on the meaning of the words "sell" or offer to sell . . . the delivery of goods to one person with payment directed to a third party falls within that definition".

This case involved a charge against a west coast trawl fisherman for fishing over a fishing area boundary line into a closed area that was delineated as being on the seaward side of a 40 fathom contour line. At trial, the court relied upon evidence from a navigator who used a global positioning device (G.P.S.) to go to the co-ordinates recorded by the fisherman and take depth soundings.Given the evidence of the Navigator that the depths at these co-ordinates placed the accused in a closed area, the court convicted.

Upon summary conviction appeal, the conviction was overturned and an acquittal entered on the grounds that the trial judge failed to take into consideration the fact that the expert witness was not aware that the co-ordinates supplied by the fisherman were created using Loran – C as opposed to G.P.S. Since the expert did not have the opportunity make adjustments for this difference (a distortion of up to 1.2 miles) his evidence could not be relied upon.

Although an acquittal was entered, the proceeds from the forfeiture of fish were not returned on the basis of s. 72(3) of the Fisheries Act, because the court was satisfied on a balance of probabilities that the accused was fishing out of season.

Upon further appeal by the Crown, the BCCA denied the Crown's appeal, but allowed a separate appeal by the defence on the forfeiture issue and overturned the forfeiture order.

This case involved a fishing vessel fishing with an otter trawl. Although a "fish finder" did not indicated many fish in the area and the first four trawls caught few fish, on the fifth trawl a very large number of fish were caught. An attempt was made to winch the net aboard, but it was discovered that the vessel could not take any more fish, the equipment could not complete the hoist, there was only about 12 inches of freeboard at the stern and large waves were posing a safety hazard and the net was beginning to tear. Consequently the net was released allowing the fish in the net to escape.

Upon being charged under s. 33 of the Fishery (General) Regulations with returning fish to the water without authorization to do so, the Court acquitted for the following reasons:

1) Based upon the definition of "fishing" set out in the case law, the fish had not yet been caught because they had not been removed from the water;

2) With respect to a few fish that were knocked overboard while releasing the net, given the circumstances the captain exercised due diligence; and

3) With respect to the failure to record a discard reported to him by a fisheries officer, but not seen by him, the accused was found to have failed to exercise due diligence.