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 – Incorrect Mesh Size
R v. Burroughs ,  BCSC 1428
This case involved a charge of fishing with a herring gillnet having a mesh size of less than 57 mm contrary to s. 42(1)(d) of the Pacific Fishery Regulations. Evidence was led by the Crown that the net in question was measured by two different fisheries officers one of whom measured the net vertically while the other measured it horizontally. The accused was aquitted at trial and the Crown appealed on the grounds that the trial judge made the following errors:
1. Erred in fact and in law in finding a reasonable doubt existed as to the mesh size;
2. Erred in law in his interpretation of the definition of mesh size as set out in the regulations; and
3. Erred in law in allowing the accused to call opinion evidence with respect to the proper method for measuring mesh size and in accepting such evidence.
With respect to reasonable doubt, the summary conviction appeal court found that there was evidence upon which the court could find reasonable doubt including:
1. Evidence that some net mesh may be different;
2. Evidence that a three per cent error is often allowed;
3. Evidence that the net material performs differently when wet and dry; and
4. Evidence that one fishery officer measured the net vertically while another measured it horizontally.
With respect to the definition of mesh size, appeal court agreed with the trial court that the definition of mesh size in the regulation did not say how the measurement is to be done. However, it found that contrary to the assertion of the Crown, the court did not decide as to what was the proper method of measurement.
With respect to reliance on opinion evidence, given the lack of judicial decisions as to how to properly measure nets mesh (and the uncertainty in the regulations), the court was correct in admitting opinion evidence. The court was also correct in finding that the opinion evidence did not assist it, given the lack of a long standing consistent practice in measurement methodology.
Offences – Aboriginal Communal Fishing Regulations – Notice required under Statutory Instruments Act
R v. Joe, 2000 BCSC 1100
This case involved an aboriginal fisherman charged with fishing during a closed time. At issue during the trial was the requirement for notice of a regulation to all persons likely to be affected by it as required by section 11(2)(b) of the Statutory Instruments Act.
At trial, the trial judge found that the communal licence issued by the fisherman’s Band pursuant to the Aboriginal Communal Fishing Regulations was a statutory instrument for the following reason:
This particular communal licence is much more than a simple permit to do something subject to when, where and how regulations. This particular document is a complete document, which not only says who can do what, it also contains in great detail how, were and when certain individuals can fish for fish or shell fish.
Since the licence was a statutory instrument, the trial judge felt bound by s. 11(2) of the Statutory Instruments Act, which prevented a conviction under the instrument unless it is proved that the Crown took reasonable steps to bring the purport of the regulation to the notice of the persons likely to be affected by it.
Upon Appeal to the Supreme Court of B.C., the court relied upon R. v. Furtney,  3 S.C.R. 89 to hold that individual licences (such as communal licences fishing licences and bingo licences) issued pursuant regulations are not statutory instruments for which notice is required. Accordingly, the acquitted was set aside and the matter was remitted back to the trial court for sentencing.
Offences - Misc. Aboriginal Communal Fishing Regulations - abuse of process
R v. Huovinen et al., 2000 BCCA 427
This case was a test case involving a challenge to the Aboriginal Communal License Regulations. In June of 1998, D.F.O. opened a commercial fishery on the Fraser River which only members of certain Indian bands were allowed to participate in. The accused, all non aboriginals, participated in the fishery by way of protest and were charged with fishing during a closed time.
An application for a stay of proceeding was applied for prior to the entering a plea.
At the trial level, the court granted a stay of proceedings for the following reasons:
1. D.F.O.'s practise of issuing communal fishing licences pursuant to the Aboriginal Communal Licence Regulations was illegal because the Minister did not have the right to determine the existence of an aboriginal right as per a previous decision of Judge Thomas in R. v. Cummins (digested herein);
2. The Crown had dispensed with the law by adopting an enforcement policy which focused on one group, and exempted another group; and
3. Since this dispensation policy violated the conscience of the community such that it would genuinely be unfair and indecent to proceed, the court intervened to prevent an abuse of process.
On summary conviction appeal, Curtis J., disagreed with the finding of the trial judge that the practice of issuing aboriginal fishing licences was illegal. On the basis of the absolute discretion given to the minister under s. 7 of the Fisheries Act, the court upheld the validity of the Aboriginal Communal Licence Regulations. He also noted that the “licences do not purport to create an aboriginal right to commercial fishing. The Supreme Court of Canada has held in the Sparrow case that fishing permits are simply a matter of controlling the fishing, not of defining underlying rights.” Accordingly, he overturned the judicial stay of proceedings.
Upon further appeal to the B.C.C.A., the court upheld the summary conviction appeal.
At the appeal, the primary issue was whether or not the Minister of Fisheries could grant a licence to catch and sell fish to an aboriginal group in the absence of a legally recognized aboriginal right to do so. In upholding the right of the Minister to do so, the court applied the Gulf Trollers decision [1987 2 W.W.R. 727 (F.C.A.) to categorize the Minister’s decision to grant such licences as political decision he was entitled and authorized to make.
In argument, the Respondent also relied upon an excerpt from R. v. Marshall [No. 2],  3 S.C.R. 533 to suggest that the Aboriginal Communal Fishing Regulations do not authorize the commercial sale of fish caught pursuant to those regulations. However, the court analyzed the regulatory scheme and concluded otherwise. In doing so, it emphasized the freedom which the Minister has to regulate the fishery through the imposition of licence conditions as opposed to regulations [The ACFR provide that if there is an inconsistency between the regulations and a condition of the licence, the condition of the licence prevails].
With respect to the stay of proceeding granted by the trial judge, the court concluded that obiter comments in R. v. Cummins to the effect that the aboriginal fishery was illegal were in error. Accordingly, there was no abuse of process to support a stay of proceedings.
Editor’s note: This decision will likely be relied upon by D.F.O. to support its policy of regulating individual fisheries primarily by the use of licence conditions as opposed to regulation. See for example 1999 amendments to the Pacific Fishery Regulations.
Offences – misc. – catch and retain – failing to return “forthwith”
R v. McIntyre , N.B.J. No. 459
This case involved a summary conviction appeal of an acquittal from charges of catching and retaining undersize clams. This case involved two fishermen who were in the water fishing for clams with a rake like tool at the time of apprehension. They had floating containers holding freshly picked clams, some of which were undersized. Despite the fact that the accuseds called no evidence, the trial court acquitted on the grounds that the crown failed to prove the clams had been “retained”.
After reviewing a number of authorities along with section 33 of the Fishery (General) Regulations, the summary conviction appeal court set aside the acquittal on the following grounds:
There is no evidence before the court on which a conclusion could be made that the clams, the possession and retention of which were prohibited were forthwith returned to the place from which they were taken or that the accused persons did not have the opportunity because of circumstances to reasonably comply wit the requirement for returning the claims forthwith to the place from which they were taken.
Offences - Unlawfully "permit" a person to fish in NAFO water without a vessel registraton card or fishing licence - Mistake of Fact - Offences - fishing lobster on closed season - definition of "fishing"
R v. Robertson , 1999 CanLII 3948
This was a summary conviction appeal, which involved charges against the owner of a licensed fishing vessel, who used his fishing vessel at a time the commercial lobster fishery was closed, in order to assist a native person who was fishing pursuant to an aboriginal licence. According to the findings of the trial judge, the vessel owner was assisting the native person to move his traps from one area to another. Although the native person physical removed the traps from the water and emptied them, the owner did the following:
1. Directed where the traps should be placed in the boat;
2. Transported the lobster which were caught;
3. Operated and controlled the vessel;
4. Offered advice on where and how to fish; and
5. Charged a flat fee of $30.00 for his services.
The main issue in the case was whether the acts of the owner amounted to "fishing" as used in s. 33(2) of the Atlantic Fishery Regulations, 1995.
The court reviewed a number of authorities and concluded that the meaning of "fishing" as used in the regulations was somewhat broader than the meaning attributed to the words in the case of The Ship "Frederick Gerring Jr." v. R. (1897), 27 S.C.R. 271. He said:
For the purposes of s. 33(2) "fishing" appears to mean following the pursuit or vocation of fishing, and not the mere taking of fish. "fishing under the authority of a licence" would appear to be broad enough to include the whole of the fishing voyage From wharf to wharf, the requirement for compliance with the conditions of a licence is intended to apply to the entire operation.
On the basis of this definition of fishing, the court overturned the vessel owner's acquittal and entered a conviction.
Offences – Misc. – Failure to prove vessel subject to the jurisdiction of Canada
R v. Hung Nguyen, Surrey Reg. No. 94940-01 (B.C. Prov. Ct.)
In a prosecution under the Fisheries Act for fishing in U.S. waters, the Crown neglected to enter a document entitled “vessel licence” (presumably a Department of Transport licence). As a result, the court acquitted the accused on the basis of a failure of the Crown to prove that the fishing vessel was subject to the jurisdiction of Canada. In making the decision the court declined to accept evidence of a fisheries officer with respect to previous dealings with the vessel on the basis of the best evidence rule. The court also refused to allow the Crown to re-open its case, as inadvertence or neglect can never give rise to the extra-ordinary circumstances justifying re-opening of a case.
Offences - Misc. - Fishing on the High Seas
Spain v. Canada , No. 96 (International Court of Justice)
This case involved the seizure of the Spanish fishing vessel "Estai" while fishing on the high seas pursuant to the provisions of the Coastal Fisheries Protection Act. By way of background information, in 1995, the North Atlantic Fisheries Organization (N.A.F.O). set a total allowable catch for turbot which was roughly one half of the previous years catch and assigned 60% per cent of the catch to Canada and only 12% to the European Community. In response, the European Community invoked the N.A.F.O. objection procedure and unilaterally set its own quota at 69% of the total allowable catch. Consequently, on March 3, 1995 Canada amended its Coastal Fisheries Protection Regulations to make it an offence for Spain and Portugal to fish for turbot on the nose and tail of the Grand Banks which are outside of Canada's 200 fishing zone. On the same day, Canada deposited a new reservation to its general acceptance of the jurisdiction of the International Court of Justice excluding from the Court's jurisdiction "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area . . . and the enforcement of such measures." On March 5, 1995 Canada issued a radio warning to European Community fishing vessels that they had fished enough and would be subject to seizure if they continued. On March 9, 1995, after warning shots were fired, the Spanish fishing vessel "Estai' which was fishing on the nose of the Grand Banks, was boarded and seized. After the posting of a substantial bail, both the vessel and its crew were eventually released.
As a result of the seizure, Spain filed an application with the International Court of Justice against Canada claiming it had interfered with the rights of its vessel's to navigate on the high seas and had also infringed the right of exclusive jurisdiction of the flag state over its ships on the high seas. Canada then immediately filed an objection to the application on the basis that the court was without jurisdiction because of the terms of the reservation filed by Canada.
Despite the fact the dispute between Spain and Canada was substantially settled in May of 1995, the case continued. With the agreement of the parties, the first phase of the case was limited to the issue of the courts jurisdiction.
In a majority decision (12-5) which analyzed both the wording and purpose of Canada's reservation in great depth, the court ruled that it did not have jurisdiction to hear Spain's case.
This case is available on the world wide web at http://www.icj-cij.org
Offences - Failing to provide answers
R v. Ardley , 1998 CanLII 4202
This case involved a charge under section 61(1)(a) of the Fisheries Act for failing to provide answers to information requests from the Department of Fisheries and Oceans. The accused was convicted at the Provincial Court level and acquitted on a summary conviction appeal. Upon further appeal, the conviction was restored on the grounds that it was intended by Parliament that this section of the act should apply to the sports fishing industry.
Judicial Review - Jurisdiction of Superior Court to hear challenge to authority of Minister of Fisheries to authorize commercial food fishery under Aboriginal Communal Fishing Licences Regulations
R v. Cummins, 1997 CanLII 1659
This case involved an action for a declaration that that section 6 of the Aboriginal Communal Fishing Licences Regulations is invalid by reason of an unlawful sub delegation of legislative power. The Crown sought a stay of the proceedings on the grounds that the action was essentially a matter of judicial review which was within the exclusive jurisdiction of the Federal Court by virtue of s. 18 of the Federal Court Act.
The Plaintiff argued that the action should be characterized as either an action concerning the validity of a federal enactment or alternatively an request for a "Dawson - type" declaration.
After a lengthy review of the law, the court accepted the argument of the Crown and characterized the action as a matter of judicial review which is in the exclusive jurisdiction of the Federal Court.
Counsel for the Crown: Paul Partridge
Counsel for the Plaintiff: Christopher Harvey
See also Neskonlith Band v. Canada (Attorney General) (22 Sept. 1997) (T-1497-97) (Fed. Ct. T.D.) (MacKay J.), digested under Aboriginal Rights and Defences.
Offences - Failure to permit an observer to go on board a vessel
R v. Chute , 1997 CanLII 1405
This case involved a fisher who was charged with failing to permit an observer to go on board his vessel. He was convicted at trial level and acquitted by a summary conviction appeal court. Mr. Justice Roscoe, for the Court of appeal restored the conviction of the trial court and held as follows:
1) section 46 of the regulations gave the Regional Director-General the authority to issue a single blanket letter to herring fishers requiring them to arrange for observers; and
2) the Regional Director-General had not improperly delegated his authority to a private company which supplied observers.
In doing so, the court said that the Fisheries Act and regulations should be given a liberal interpretation. The rule of construction that Penal statutes should be construed narrowly, "becomes applicable only when attempts at the neutral interpretation suggested by s. 12 of the Interpretation Act will leave reasonable doubt as to the meaning or scope of the text of the statue."
Offences - Misc. - Evidence - Circumstantial re Exceeding Allowable Catch
R v. Jackson , 1997 CanLII 1539
This case involved proof that a fisher has exceeded his allowable catch of haddock by way of circumstantial evidence. The Court of Appeal adopted R. v. Jenkins (1908), 14 C.C.C. 21 (B.C.C.A.) and confirmed that the accused does not have to explain away suspicious circumstances.
Offences - Misc. - Evidence - Circumstantial re tagless traps
R v. Nickerson , 1997 CanLII 2809
This case involved a string of 30 tagless traps with 5 traps at the end of the string with tags attached which had been issued to the accused. The Appeal Court upheld the conviction which was based primarily on circumstantial evidence.
Offences - possession of a salmon taken by "angling"
R v. Harding, 1997 CanLII 14641
This case involved the issue of whether or not the definition of "angling" in the Newfoundland Fishery Regulations was mutually exclusive of the definition of "foul hooking or jigging in the same regulations". The Trial Judge and the first level of appeal held that they were mutually exclusive and acquitted the accused because he was in possession of a fish caught by "jigging" (the accused was convicted on another charge of fishing by jigging). The Court of Appeal reversed the findings of the lower courts and held that "angling" includes the activity of "jigging". Accordingly, the accused was convicted of possession of salmon taken by "angling".
Counsel for the Crown: Anne Fagan
Counsel for the Accused: Elvis Harding
Offences - Misc. - net size - two Different ID numbers - onus of proof of offence pursuant to s. 78.4
R v. Golem , No. 800/97 (Ont. Ct. of Justice)
This case involved the discovery of an illegal gill net with two different identification numbers upon it. The accused, was the corporation who held a licence under one of the two identification numbers. At trial, no evidence was led with respect to the person to whom the second identification number was issued. Upon convicting the accused, the Justice of the Peace indicated that after leading evidence of the two identification numbers attached to the net, the onus then shifted to the accused to offer an explanation. Upon appeal, it was held that no such reverse onus existed and the Crown had failed to establish the offense beyond a reasonable doubt.
Counsel for the Accused: D.R. Nash
Counsel for the Crown: A.R.E. Ryan
Offences - Unlawful fishing with a Purse Seine
R v. Feltham , No. G-127 (NFLD. S.C.) (Easton J.)
This was a summary conviction appeal of an acquittal of a charge of unlawfully fishing with a purse seine. The main issue of the case was whether the accused was fishing with a bar seine for which he held a valid licence, or a purse seine for which he did not. Given the fact that the definition of purse seine had been revoked from the Newfoundland Fishery Regulations, the issue created some difficulty. The accused was fishing with a net which resembled a purse seine, but could not be closed completely at the bottom and was being used in shallow water. The summary conviction court held that the Crown had not established its onus of proving fishing with a purse seine. This decision was upheld by the summary conviction appeal court.
Counsel for the Accused: Michael Griffin
Counsel for the Crown: Kevin Preston
Offences - Misc. - Sufficiency of Information - continuing offences - s. 78.1
R v. Gateway , M.J. No. 185 (Man. Prov. Ct.)
This case involved a motion to quash 10 of 13 counts of an information. The motion was successful in quashing a number of counts on the basis that they did not state the location of the offence so as to give the court territorial jurisdiction. The motion was unsuccessful in quashing counts of the information which alleged an offence continued over a period of several days. It contains a useful discussion of the law with respect to the quashing of informations.
Counsel for the Crown: Darrin R. Davis
Counsel for the Accused: D.C.H. McCaffrey, Q.C. and Alain L.J. laurencelle
Offences - Misc. - Failure to Report Catch Info - section 62(1)9d) & 63
R v. Glynn , St. J. No. 1757 (NFLD. S.C.)
On a summary conviction appeal, the court confirmed that upon receiving a request from D.F.O., an agent hired by the owner of a fishing vessel to monitor offloading of fish, has an obligation to report catch information to D.F.O.
Counsel for the Crown: Anne Fagan
Counsel for the Accused: Robert Buckingham
Offences - Misc. - Closed area - Refusing to stop vessel- Definition of "fishing" Defences - necessity-
R v. Skinner , 1997 CanLII 14697
This case involved a vessel fishing for cod by Otter Trawl. The evidence was that the vessel had caught 60,000 lbs. of cod in a open area, but could only take 25,000 lbs. into its tanks at a time. While the first 25,000 lbs. was being processed, the cod end of the net was put back into the water to prevent the fish in the net from freezing. With the net in the water it was necessary for the vessel be under power to prevent the net from being entangled in the propellers. Further, it was necessary for the vessel to pull the net with the wind. This resulted in the vessel going into a closed area with its net partially in the water. The vessel was charged with fishing in closed waters and failing to stop to allow Fisheries officers to board.
With respect to the issue of whether or not the vessel was "fishing" while its net was in the water in a closed area, the court reviewed a number of authorities and concluded that the vessel had "obtained absolute and certain possession" of the fish while it was in an open area. The act of fishing was therefore concluded before the vessel went into the closed area. The placing of the net back in the water, was viewed simply as an act of storage.
With respect to the charge of failing to stop the vessel to allow safe boarding, the court held that the defence of necessity had been established as the vessel could not be safely stopped because of the risk of entangling the net in the propeller.
Counsel for the Crown: Anne Fagan
Counsel for the Accused: Fred Constantine
Offences - Closed Area - Failure to Prove Essential Element -
R v. Robert E. Morreau, No. CA020828 (B.C.C.A.)
In 1994 there was a blanket ban on herring fishing for the entire west coast. This ban was modified on rare occasions to allow fishing. During a 23 minute opening in an area near Comox the accused was charged with fishing outside the open area. The order opening the area for fishing described the boundaries of the area by reference to lines on a chart which were attached as a schedule. The northern boundary of the open area was delineated by way of a line drawn between two floating buoys. The announcement of the opening which was broadcast over the radio described the northern boundary as a line between the two buoys. Since the buoys were hanging from chains and moved with the tide, a central issue of the case was whether the area boundary was based upon a visual line between the buoys as they were positioned by the tide at the beginning of the opening, or a non visual line based upon the position of the buoys on the chart which formed part of the order. This position could be expressed in terms of longitude and latitude and be ascertained by Loran or other electronic equipment. The Court of Appeal held that the non visual line delineated the boundary and, since the crown did not affix the position of the accused based upon the non visual line, it failed to prove an essential element of the offence. Accordingly an acquittal was entered.
Counsel for the Appellant: Christopher Harvey
Counsel for the Crown: K.J. Yule
Offences - Closed Area -
R v. Dowdle, 1997 CanLII 4618
The accused was apprehended lobster fishing at a wharf located within an area closed to fishing for lobster. The trial court acquitted the accused on the grounds that the Crown failed to prove beyond a reasonable doubt the location where the accused had been fishing.
On appeal, the P.E.I. Supreme Court set aside the acquittal and convicted the accused on the basis of section 610(1) of the Canada Shipping Act which provides as follows:
For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed and every cause of complaint to have arisen either in the place in which the offence actually was committed or arose, or in any place in which the offender or person complained against may be.
Counsel for the Crown: Stephen D.G. Mcknight
Counsel for the Accused: Andrew Walder, Q.C.