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. - Improper Estimate of Catch
R v. Rice ,  N.J. No. 247 (Nfld. & Labrador Prov. Ct.)
This case involved a charge under s. 63(1) of the Fisheries Act of making a “false or misleading statement” when estimating the amount of crab caught for the purpose filling out fishing logs. After landing the crab and making deductions for ice, water and barnacles, the landed weight was 37,238 lbs while the estimated weight was 31,348 lbs. In deciding whether or not the captain of the vessel had made a false estimate, the court followed R. v. Kavanagh  N.J. No. 124 to define an estimate as “using one’s best skills and talents . . . It is broad enough to allow the influence of various factors that could effect the estimate, such as catch size, excessive use of ice if traveling long distances, and factors similar in nature. And, it is of sufficient particularity that it does not render section 63 meaningless by allowing any guess to be included in the term ‘estimate’” (para. 14). Notwithstanding some evidence that the crab trays had been overfilled, the court acquitted based upon evidence that the captain had based his estimate upon an average weight of 52 lbs per tray which was two pounds higher than the industry average of 50 lbs per tray.
Offences – Misc. – Fishing on Continental Shelf – Remedy of Prohibition
R v. Perry ,  N.J. No. 97 (Nfld. S.C.)
This case involved the Captain of a U.S. flagged fishing vessel who was charged under s. 4(2) of the Coastal Fisheries Protection Act with illegally fishing on a portion of the continental shelf beyond the limits of Canadian fisheries waters. On a pre-trial application, the fisherman argued that the Crown could not rely upon vague and uncertain statutory provisions to establish the jurisdiction of the court.
The main issue dealt with by the court in responding to this application was whether the prerogative remedy of prohibition ought to be granted at the pre-trial stage of the litigation when a right of appeal would ultimately exist. After reviewing two lines of authorities, the court denied the application. In doing so, it adopted the following quote from R. v. Duvivier (1991), 64 C.C.C. (3d) 20 (Ont. C.a.):
“The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process.”(para. 26)
Offences - Misc. - Possession (def'n) - Whether fish (filleted cod) in condition where its species readily identified
R v. Hudson, 2003 CanLII 29889
Not yet available.
Offences – Misc. – Proof of licence conditions - Presumption of Regularity
R v. Rideout , 2003 NLSCTD 58
This was a companion case to R. v. Cox 2003 NLSCTC 56 (digested herein). In addition to the issues raised in R. v. Cox, this summary conviction appeal also raised the issue of who has the onus of proof regarding the question of whether or not the licensing official was properly authorized to issue licence conditions on behalf of the Minister of Fisheries. At trial, the court ruled that onus of proof lay on the Crown and acquitted on the grounds that the Crown had failed in meeting that onus. Upon appeal, the court applied a “presumption of regularity” set aside the acquittal.
Offences – Misc. - Fishing Unregistered Vessel – Def’n of “fishing – Interpret of statutes
R v. Kelly , 2003 NBQB 148
This was a summary conviction appeal by the Crown of an acquittal from a charge of fishing with an unregistered vessel. The unregistered vessel was a large scow that was being towed by a smaller registered scow for the purpose of attending a trap net set in the Miramichi River. Upon reaching the net, the larger scow was detached and each scow went along either side of the net, presumably to remove the fish from the net. The fish were then transported back to the dock in the larger scow being towed by the smaller scow. At issue, was the question of whether or not the large scow was a vessel “used in fishing” pursuant to s. 4(1)(c) of the Maritime Provinces Fisheries Regulations. After applying the definition of fishing set out in The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen (1897) 27 S.C.R. 271 and reviewing the principles of statutory interpretation, the court found that the large scow was used for fishing and imposed a verdict of guilty.
Offences - Misc. - Possession - "fishing"
R v. Douglas , 2003 BCPC 126
This case involved charges of both fishing in a closed area and possession of illegal fish against three members of the Cheam First Nation. At the end of the Crown’s case the defence brought a no evidence motion. In dismissing the no evidence motion, the court applied the broad definition of fishing contained in The Ship “Frederick Gerring Jr. v. Canada (1897) 27 S.C.R. 271 as will as the definition of “possession” contained in section 4(3) of the Criminal Code. It also discussed the applicability of s. 21(1) of the Criminal Code (aiding and abetting).
Offences – Misc. – Aboriginal defence - Delay
R v. George, 2002 BCPC 207
This case involved a charge against a First Nations defendant of offering to sell fish that was not caught under the authority of a fishing licence. At the commencement of the trial, the defence made an application for a judicial stay on the grounds that, “[t]hese delays have caused our clients, one of whom is an elder, considerable expense both in legal fees resulting in attending the extra various pre-trial hearings, and emotional hardship in having to wait almost 21 months from the time of the alleged offence to the day of trial” (para. 20). The court applied the test set out in R. v. Morin  1 S.C.R. 771 and found a prima facie case of delay. However, upon going to the second stage of balancing the defence need for a speedy trial against societies interest in bringing a accused person to trial, the stay was rejected on the grounds that no serious prejudice had been established. With respect to prejudice, the court said:
No evidence was offered of ongoing stress or damage to reputation resulted from the pending trial;
As discussed in R. v. Marin  B.C.J. No. 1515 at para. 19, there was no evidence of significant legal fees linked to the delays or business statements showing a decline in revenue, or doctor’s reports outlining symptoms of stress or anxiety.
Offences – Search and seizure - person non involved in fishery but in peripehery - Misc (obstruction & def'n of fishing)
R v. Rhyno , 2002 NSPC 8
This case involved a crab boat that was owned by a group of fishermen who were under suspicion for illegal crab fishing. Although the vessel had not engaged in commercial fishing for some time, it was outfitted for fishing, it was tied up to a dock with crab traps piled upon it, and on the day in question, it had left the dock at 7:00 p.m. in the evening and returned one hour later. Upon the vessel being approached by uniformed fisheries officers, the accused left the boat and refused to produce identification when asked to do so. As a result of his refusal, he was arrested for obstruction.
One of the issues at trial was whether the provisions of the Fisheries Act and regulations regarding inspections applied to “someone not proven to be involved in the fishery but, at most, only on the periphery or with the opportunity to be involved” (para. 17).
In finding the accused guilty of obstruction, the court took the expansive view of fishing from R. v. Newell  N.S.J. NO. 413 to the effect that fishing includes the whole voyage from wharf to wharf. The court said that although there was no evidence that the accused was actually involved in the fishery, the fisheries officers “had reason to suspect the vessel was one which fell within s. 49(1) of the Act justifying the inspection of a “place” and that . . . [the accused], ‘a person found in the place’ would be obliged to provide information as contemplated by s. 49(1.20(B) of the Act” (para26).
Offences – Misc. – Collection of Brood Stock for Abalone without Permission
R v. Johnstone , 2002 BCPC 111
This case involved a new abalone aquaculture project arising out of a collaborative agreement to be entered into with D.F.O. While the final form of agreement was still being negotiated, an assistant deputy minister issued a letter indicating it would “allow for a small number of brood stocks to be collected pending the signing of a collaborative agreement . . .” (para. 7). Despite a subsequent letter from the local D.F.O. office which was somewhat contradictory to the letter issued by the assistant deputy minister, the accused proceeded to harvest some brood stock and was eventually charged for fishing without a licence.
At trial, the issue was whether or not the accused had sufficient permission from D.F.O. to collect the brood stock.
Upon reviewing all of the evidence, the court acquitted the accused on the grounds that he had sufficient permission.
Offences – Misc. – Proof of Terms and Conditions
R v. Edwards , 2002 BCSC 430
This was a summary conviction appeal of a conviction for failing to comply with the terms and conditions of a fishing licence (taking rockfish without a quota amendment).
At issue was whether or not the Crown proved that the set of licence conditions was physically attached to the fishing licence.
Although a certified copy of the licence was entered at trial, no employee from the D.F.O. licence division was called as a witness.
In overturning the conviction, the appeal court rejecting the finding of the trial judge that the attachment of the terms and conditions had been proved. In doing so, it said that the court placed much too much weight on the accused’s compliance with the terms and conditions as evidence that they were issued to him. The court also held that very little weight should have been given to testimony from fisheries officers as to the general practices of the employees of the D.F.O. licence division.
In arriving at its decision the court distinguished R. v Fitzpatrick  4 S.C.R. 154 as a case where the licence conditions referred to obligations which were set out independently in separate regulations. The court also conceded that under some circumstances, such as when the terms and conditions are found aboard the vessel, the Crown might not have to actually prove the licence conditions were attached at the time the licence was issued.
Editor’s Note: For another case involving proof the terms and conditions of a licence see R. v. Morgan  N.J. No. 15 (Nfld. and Labrador Prov. Ct. ) digested herein.
Constitution – Division of Powers - Offences - Misc (Constitutional Division of Powers)
R v. Ward , 2002 SCC 17
This case involved a fisherman who was charged under section 27 of the Marine Mammals Regulations, SOR 56/93, passed pursuant to the Fisheries Act. This regulation prohibited the sale of, amongst other things, “blueback” seals, which are young hooded seals and whitecoats, which are young harp seals. The evidence lead at trial was that public opinion opposed to the killing of seal pups was detrimental to the market for both seal products and other Canadian seafood products such as British Columbia canned salmon. Since it is very difficult to distinguish between mature and immature harp seals while hunting, D.F.O. responded to this problem by enacting section 27 of the Marine Mammals Regulations, which made it an offence to sell immature seals. This case involved a challenge to the constitutional validity of this regulation.
The issue in this case was whether the impugned regulation fell under federal jurisdiction over “Sea Coast and Inland Fisheries” under section 91(12) of the Constitution Act or whether it fell under provincial jurisdiction over “Property and Civil Rights’ under section 92(13) of the Constitution Act?
At trial, the court relied in part upon Re Minister of Fisheries and Oceans and Gulf Trollers (1987), 32 D.L.R. (4th) 737 (F.C.A.) to uphold the legislation on the grounds that the federal fisheries power extended beyond conservation to more general socio-economic goals.
The Majority of the Newfoundland Court of Appeal reversed the trial judgement and held the regulation invalid. They held that the fisheries power was confined to issues of conservation, and legislation enacted for socio-economic reasons was too broad a description for division of power purposes. It was the view of the dissenting Judge that the pith and substance of the regulation was not to control the sale of seal pelts for its own sake, but to discourage the commercial taking of the seals.
Upon further appeal to the Supreme Court of Canada, the court allowed the appeal and upheld the regulation as valid. In doing so, it applied the two staged pith and substance test: first, what is the essential character of the law? Second, does that character relate to an enumerated head of power? In looking at the essential character of the law, the court embarked on another two stage test: first, what is the purpose and second, what is the legal effect of the regulation. In determining the purpose of the regulation, the court relied upon the trial judge’s finding that the purpose of the regulation was to control the killing of the blue backs and whitecoats by prohibiting their sale, thus making it pointless to harvest them. This finding was re-enforced by the fact that the Fisheries Act gives power to make regulations not only for the conservation and protection of the fisheries, but also for the management and control of the fisheries.
With respect to the legal effect of the regulation, the court rejected an argument that because the regulation prohibited the sale of pelts, it must in pith and substance be concerned with the regulation of sale. This argument confused the purpose of the regulation with the means chosen to carry it out.
With respect to the issue of whether the pith and substance of the regulation falls within the federal fisheries power, the court rejected the theory espoused by the Newfoundland Court of Appeal that federal fisheries power only extends to conservation. It also rejected the argument that it only extends to the management of the fisheries resource to the point of sale. In doing so, it cited and number of decisions, including the Gulf Trollers decision, and said as follows:
These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control. They recognize that "fisheries" under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" (Robertson, supra, at p. 121); "a common property resource" to be managed for the good of all Canadians (Comeau's Sea Foods, supra, at para. 37). The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation. (para. 41).
Offences – Misc. – Admissibility of Fishing Licence and Conditions
R v. Morgan ,  N.J. No. 15 (Nfld & Labrador P.C.)
This case involved a charge of violating a condition of a fishing licence, namely failing to have a dockside observer supervise the unloading of a crab vessel. One issue which arose at trial was the admissibility of a computer generated replication of the fisherman’s fishing licence along with the conditions and schedules attached thereto. In allowing the licence and related documents to be admitted, the court did a comprehensive review of the applicable sections of the Canada Evidence Act as set out below.
Section 24 of the C.E.A. –Certified Copies of Official or Public Documents
The court ruled that the licence documents were not “official documents” because they were made by public servants in the ordinary course of business and did not have a special status necessitating that they be preserved and stored for some specialized usage.
The court ruled that to establish that the licence documents were “public documents”, the Crown must establish the following:
1. The Record must have been made by a public official;
2. In the discharge of a distinct public function or obligation;
3. With a view of a permanent record; and
4. The document must be accessible to the Public (a new requirement not part of the Law of England).
Upon applying the test, the Court found that the last two requirements had not been established by the Crown. In addition, the Court found that there was no provision allowing any of the evidence to be established by affidavit. Accordingly it ruled there was no admissible evidentiary foundation for admitting the licence documents as “public documents” under s. 24.
S. 30, 31.1 & 31. 2of the C.E.A. – Record made in the Usual and Ordinary Course of Business
Upon reviewing s. 30 of the C.E.A., the Court ruled that the licence documents fell within the definition of “record” in s. 30(12) of the Act. It also relied upon R. v. Parker (1984), 16 C.C.C. (3d) 478 to rule that affidavit evidence could be used to establish that the record was prepared in the usual and ordinary course of business. However, since the licence documents tendered in courts were not original documents, the court had to go on and determine whether a computer generated copy could be received in evidence. With respect to s. 31.1, the Court relied upon both the verbal evidence of one witness and observations of the documents themselves to conclude that they were “what they are purported to be”. With respect to s. 31.2 (Best evidence rule), the court was also satisfied that affidavit evidence confirmed: (1) the integrity of the computer system and (2) the printout had been manifestly or consistently acted on, relied on or sused as a record of the information recorded or stored in the print out.
Since the documents satisfied the best evidence type requirements set out in ss. 31.1 and 31.2, and since they were admissible under the ordinary course of business exception under s. 30 of the Act, the court admitted the licence documents.
Alternatively, the Court also ruled that so long as the licence documents were admissible under s. 30, they also would have been admissible under s. 30 (3) of the Act which provides for the use of copies when it is not reasonable or practical to produce the original.
S. 25 C.E.A. – Copy of Public Document
Without reasons, the court ruled that this section was not applicable.
S. 26 C.E.A. – Books Kept in Offices Under Gov’t of Canada.
Without reasons, the court ruled that this section was not applicable.
Offences - Search and seizure -Duty of Owner or Person in Charge of Place to Give All Reasonable Assistance - Misc. (obstruction)
R v. Robie , 2001 BCSC 1572
This case involved a fisheries officer who was inspecting a property under s. 49 of the Fisheries Act to see if logging on the property had any impact on fish habitat. While attempting to question the woman who was the owner of the property in question, her husband, the accused, aggressively placed himself between his wife and the fisheries officer, preventing him from even attempting to communicate with the property owner and ordering him off the property.
At trial, the husband was convicted of obstruction.
One of the issues arising at the summary conviction appeal was whether questioning of the owner of the property at her ranch house, away from the waterway was authorized under the Fisheries Act.
In holding that the search was valid, the appeal court referred to s.49(1.2) of the Act which provides that the owner or person in charge of a place stall (a) give all reasonable assistance and (h) provide the officer with any information he or she may reasonably require.
The second issue was whether or not the conduct of the property owner’s husband amounted to obstruction. In upholding a conviction for obstruction, the summary conviction appeal judge said as follows:
This was not simply saying rude words or unpleasant words. There was a phvsical stance, body language and viewed totally, a course of conduct which was intended to impede and hinder the officer and obstruct him from what he was attempting to do . . . (para. 5)
Offences – Misc. – Incidental catch – failure to return “forthwith”
R v. Norman, 2001 CanLII 33771
This case involved a charge under s. 33(2) of the Fishery (General) Regulations of failing to “forthwith” return incidentally caught fish. The fish in this case, were 12 dead salmon incidentally caught in a herring net set to catch bait for lobster traps. Upon being caught on the grounds with a bag containing 12 salmon, the accused gave evidence that his intentions were to transport the salmon approximately 50 feet from the end of his net into deeper water to prevent lobsters in the area from being distracted from his lobster traps. At trial, the court registered a conviction.
Upon summary a conviction appeal, the appeal court distinguished the case of R. v. Symonds (1996) 138 Nfld. & P.E.I.R. 109 and entered an acquittal for the following reasons:
1)Contrary to what was said in R. v. Symonds, the value of the fish involved should not be a consideration;
2) The accused also had some herring and mackerel aboard which aided his credibility;
3) “The interpretation of “forthwith” should not be so restrictive as to mean immediately if the explanation given as to why they were not thrown over is reasonable under all the circumstances of the case” (para. 26);
4) “(F)forthwith does not necessarily mean immediately. It, however, can mean as soon as possible in the circumstances.
Offences – Misc. – Transporting Fish Without a Licence – Def’n of “fishing”
R v. Boutcher , 2001 NFCA 33
This case involved a cod fisherman who after his quota had been exhausted, used a fishing vessel licensed in his name to assist his brother in fishing his cod quota. This assistance included the following:
1) Transporting his brother across open waters to a location where the brother’s smaller vessel was tied up;
2) Removing cod from a cod bag towed behind his brother’s boat and loading them onto his larger boat;
3) Delivering the cod, without his brother on board, to a fish processor to be booked in the name of his brother.
Upon being charged under s. 13.1(1) of the Atlantic Fishery Regulations, the issue before the courts was whether or not the accused could take the benefit of an exemption which allowed fish to be transported by a vessel “where the vessel used in transporting the fresh fish is (a) the vessel that was engaged in the catching of that fish”.
At trial level, the Provincial Court judge applied the broad definition of fishing as set out in R. v. Skinner (1997), 147 Nfld. & P.E.I.R. 350 and The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen (1897), 27 S.C.R. 271 to conclude that the assistance provided by the accused’s fishing vessel could be interpreted as being “engaged in the catching of fish”. Using what could be called a literal approach to interpreting the regulations, the trial judge gave the accused the benefit of the exemption and entered an acquittal.
Upon appeal to the Nfld. Supreme Court, the court accepted the findings of the trial judge to the effect that the accused’s vessel was engaged in catching the fish which it carried. After concluding that the accused was involved in illegal fishing because his own quota had been exhausted, the court found that this illegal conduct precluded him from taking advantage of the saving provision in the regulations.
Upon further appeal to the Newfoundland Court of Appeal, the court split with the majority restoring the acquittal of the trial judge and the minority agreeing with the summary conviction appeal judge.
The reasons for judgment of both the minority and majority decisions are quite lengthy and review at length the principals of statutory interpretation. For the most part, where they differ is as follows:
The Majority was of view that in applying the purposive approach to statutory interpretation, “judges are not ‘free to alter the words used if they dislike the result’, thereby contradicting the enacting body’s policy”(para. 93); and
The Majority was of view that since the fish were hauled from a trap with a boat licensed to the brother, there was nothing improper about the accused helping his brother with his vessel for such things as transporting the crew and catch through dangerous waters.
Editor’s note: This case in unusual in that the broad definition of “fishing” as set out in The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen was relied upon by the accused to obtain an acquittal rather than by the Crown who usually benefit from the application of this case.
Offences – Misc. - Exceeding By-catch – Definition of “fishing trip”
R v. Rose , 2001 CanLII 37619
This case was a summary conviction appeal involving an east coast halibut fisherman who was charged with exceeding the cod by-catch provisions as set out in his fishing licence. His licence provided that if a fisherman exceeds the 30 per cent by-catch level in any fishing trip, then on any subsequent fishing trip if he exceeds the 30 per cent limit he must remove his gear from the water for a minimum period of 30 days. In this particular case, the fisherman exceeded his limit on both May 7 and May 11 and then continued to fish on the following days of May 12 and May 14.
At the trial level, the court acquitted the fisherman on the charge based upon an interpretation of “fishing trip” to mean “catching almost the amount of fish that the boat would allow” (para. 6).
Upon appeal, the acquittal was set aside and a conviction was entered. In entering the conviction the appeal court relied upon section 15(2) of the Interpretation Act to allow him to apply the definition of “fishing trip” contained in the Atlantic Fishery Regulations, 1985. In the alternative, the court also would have found that a fishing trip ended when the fish caught during the time at sea was off loaded.
Offences – Search and Seizure - Misc. – Evidence – Admissibility of Plant Fish Book – Principled Exception to Hearsay Rule
R v. Wilcox , 2001 NSCA 45
This case involved a large number of charges against a snow crab fisherman who was alleged to have conspired with two dockside observers to land catches of snow crab in excess of his quota.
Amongst other things the case concerned the admissibility of a “fish book” containing a hand written table of dates, names, quantities of fish and values of fish. This fish book was prepared by a clerk at the fish plant, despite the fact that he was instructed by his employer to only record information in a computer. The fish book was first discovered during an off season inspection of the fish plant made pursuant to 49(1) of the Fisheries Act. After the fish book and other documents were observed, the fisheries officers then obtained a warrant pursuant to s. 49.1 of the Act based upon the information obtained during the inspection and seized the fish book. One of the issues at trial was whether or not the initial inspection pursuant to section 49 of the Act was legal.
In holding the “inspection” to be valid, the trial court rejected defence arguments that D.F.O. exceeded its authority, firstly, by inspecting a fish plant which did not hold a fishing licence, and secondly by conducting the inspection after the fishing season had closed. It held that so long as the fisheries officers had not reached a point where they had reasonable and probable grounds to believe an offence had occurred, it was not necessary for them to obtain a warrant under section 49.1 of the Act.
The trial court also rejected defence arguments that the “inspection” violated the Charter. In doing so, it referred to R. v. Fitzpatrick  4 S.C.R. 154 [link] for the proposition that in a regulated activity such as the fishing industry there is not a high expectation of privacy.
Upon appeal, the court upheld the decision of the trial judge. In doing so, it accepted the trial court’s findings that the fisheries officers had not yet reached a point where they had reasonable and probable grounds to believe an offence had been committed.
With respect to the Charter, it was argued by defence counsel that section 49 of the Fisheries Act must be applied so as to limit its operation to the regulatory context rather than to permit its use for investigative purposes. That is, where an investigation is under way, resort to a regulatory inspection infringes sections 7 and 8 of the Charter.
In a very analytical judgement, the court reviewed these arguments at length with a thorough review of the applicable authorities. In doing so, it followed the R. v. Fitzpatrick line of authorities to conclude that “the requirements of ss. 7 and 8 of the Charter, as developed in the context of criminal law, should be applied more flexibly in this regulatory context” (para. 110). With respect to s. 7 (life liberty and security of person), the court applied the tests set out in R. v. Fitzpatrick and R. v. White to conclude that the inspection and subsequent seizure of the fish book did not offend s. 7.
With respect to section 8 (unreasonable search and seizure), the court concluded that in the circumstances of the case, there was only “the most modest reasonable expectation of privacy” (para. 121). In rejecting the argument that there had been a breach of section 8 of the Charter the court said “I do not accept the proposition that an inspection of business premises in the fisheries context engages the Hunter requirement of prior judicial authorization where the officers are investigating a suspected offence but do not have reasonable and probable grounds to obtain a search warrant” (para. 121).
Editor’s note: See also the digest of this case under “Offences – Misc.” with respect to the application of the principled exception to the hearsay rule
Offences – Misc. – Incidental Catch – Mistake of Fact
R v. Harris , [2001 N.J. No. 64 (Nfld. Prov. Ct.)
This case involved charges against a ground fish cod fisherman for continuing to direct for skate or monkfish after landing catches in excess of his by-catch allowance.
The issue was whether or not he had a defence of reasonable and honest mistake of fact.
The evidence was that although the accused had been fishing for 10 years, this was the first trip that he had directed for monkfish and skate. As a result, he was confused about how to apply the conversion factor of 2.7 for skate wings. When the accused realized he had a problem he contacted the Department of Fisheries and asked for their assistance. Based upon this evidence, the court acquitted.
Editor’s note: See also two other companion judgement released the same day: R. v. Wayne Meade,  N.J. No. 65 and R. v. Strowbridge  N.J. No. 66.
Offences – Misc. – Def’n of “Fishing”
R v. Tapper ,  N.J. No. 157 (Nfld. Prov. Ct.)
This case involved a lobster fisherman who had his fishing vessel seized by the Department of Fisheries as a result of charges laid in an unrelated matter. Since his gear was in the water at the time of the seizure, he wrote to the Regional Director and sought assistance in removing his herring nets and lobster traps from the water. Based upon advice he received from the Regional Director, he used another persons boat to remove his nets, but did not remove his lobster traps. As a result of the later discovery of his traps in the water after the closure of the fishing season (empty of bait and lobster), he was charged with fishing during a closed time.
The main issue in the case was whether the accused was “fishing” as defined in section 2 of the Fisheries Act.
The court reviewed authorities such as R. v. Alward (1990) 79 Nfld. & P.E.I. Rep. 262 and Ship Frederick Geering JR. v. R. (1896 27 S.C.R. 271 as well as Regulation 57 of the Atlantic Fisheries Regulations to conclude that the accused was not “fishing”. In doing so, the court noted that “the Regulations contemplate indicia of feasance rather than nonfeasance” (para. 13). The court also noted that this was more a case of abandonment as proscribed by section 25 of the Fisheries Act.
In responding to a defence argument that the Regional Director was counselling the accused to do an illegal act when it suggested picking up the traps with another boat, the court also noted that the accused could have sought an amendment to his licence to allow another boat to assist in retrieving gear from the water.
Offences – Miscellaneous – Undersize Crabs - Practise – Expert Evidence – Scientific Qualifications Not Necessary to Identify Gender of Crabs
R v. Rayner , 2000 NSCA 143
This case involved a lobster fisherman charged with unlawful of possession of female crabs. The issue was whether or not the trial judge erred in rejecting opinion evidence from two fisheries officers with respect to the gender of the crabs. In doing so, he was of the view that the evidence of the Fisheries Officers was not of sufficient weight to justify a conviction because neither of the Officers had any formal scientific training on the identification of the gender of crabs.
In overturning the decision and ordering a new trial, the Nova Scotia Court of Appeal held that the trial court applied to high a standard for the reception of opinion evidence. In doing so, it cited two S.C.C. cases for the proposition that:
It is not a requirement that a person be formally educated in a particular area in order to be qualified as an expert. People who are by some particular or special knowledge, skill or training can give an opinion on a mater in issue that falls outside common or popular understanding. This knowledge and expertise can be gained through either study or practical experience or observation (para. 22).
It is noteworthy that the court also cited Sopinka and Lederman for the proposition that since there was no objection to the admission of the opinion evidence, the failure to hold a voire dire was not fatal.