Fisheries Law

Recently posted case summaries and articles relating to Fisheries Law can be found on this page. Previously posted summaries and articles are archived by subject matter. Simply click on the appropriate heading in the table below for cases relating to that subject matter.  

Copies of many of the decisions referred to can be obtained from the web site of the Canadian Legal Information Institute. At this site, these cases can also be noted up using the Reflex Record to determine whether they have been changed upon appeal.

TOPICS

Recent Cases 

Aboriginal Rights and Defences - Judicial Review of Decision to Limit lobster catch permitted under Aboriginal Communal Food and Ceremonial Fishing Licence - Consultation requirements

Native Council of Nova Scotia v. Canada (Attorney General) 2008 FCA 113

This case involved an application for judicial review of a decision of the Minister of Fisheries to limit the permitted lobster catch under an Aboriginal Communal Food, Social and Ceremonial Licence issued to the Native Council of Nova Scotia ("NCNS"), a society that was created for the purpose of "assisting and giving a collective voice to Mi'kmaq and other Aboriginal persons living 'off-reserve' in Nova Scotia" (para. 7). The fishing licence in question, had been issued pursuant to a harvest plan negotiate as part of a "Aboriginal Fisheries Arrangement" negotiated between DFO and NCNS.

As a consequence of concerns over poaching occurring under the guise of the fishing permits issued pursuant to the fishing licence and after some consultation, DFO modified the Licence to impose a 20 trap per person per day limit.

At the hearing the three over-lapping issues were raised:

1) Administrative law issue (procedural fairness);

2) Constitutional issue (s. 35 duty to consult); and

3) Contractual issue.

With respect to the constitutional issue, the trial level court ruled that the applicant had failed to establish the breach of a duty to consult for a number of reasons including the following:

a) Not all of the members of the NCNS had an aboriginal right to fish;

b) No aboriginal right was asserted in the applicants pleadings and the court was unable to imply one from the evidence presented;

c) One cannot meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right (quoted from Haida);

d) the duty to consult and accommodate does not guarantee aboriginal groups the outcome they desire (quoted from Haida);

With respect to the allegations of breach of procedural fairness, after reviewing the little evidence that was available, the trial level court concluded that NCNS had an opportunity to participate in the process of determining a course of action to address the poaching concerns.  Although the views of NCNS were not accepted, they were considered. Under the circumstances, this was adequate.

With respect to allegations that DFO breached the consultation requirement of the Aboriginal Fisheries Arrangement, the trial level court ruled that the agreement only required that the parties "attempt" to find a mutually acceptable solution to their dispute.  It did not impose a requirement that they "arrive" at a mutually acceptable resolution of their dispute.

Upon appeal, the decision of the trial level court was upheld based upon its reasoning with respect to items one and two above.

Aboriginal Rights and Defence - Whether Aboriginal Communal Fishing Management Entity employer as defined by Nova Scotia Workers' Compensation Act

Employment Law - Whether Aboriginal Communal Fishing Management Entity employer as defined by Nova Scotia Workers' Compensation Act

Mime'j Seafoods Ltd. v. Nova Scotia (Workers' Compensation Appeals Tribunal) 2007 NSCA 115 [link]

This case involved judicial review of a decision of the Nova Scotia Workers' Compensation Appeal Tribunal that held that Mime'j Seafoods Ltd. was a employer for the purpose of assessments under the Workers' Compensation Act.

Mime'j Seafoods Ltd. was an aboriginal communal fishing management entity that was incorporated for the sole purpose of accommodating D.F.O.'s requirement that fishing licences be held by either a band or some other entity recognized by Canadian law. It was the owner of 12 fishing vessels used in the aboriginal fishery and holder of multiple licences granted under the Aboriginal Communal Fishing Regulations. It leased vessels and licences to captains and deckhands for use in the fishery. It also underwrote the operating expenses, provided fishing gear and controlled the disbursement of the proceeds of the landed catch.

Although Mime'j was not asserting any aboriginal or treaty right (para. 5), it argued that because the Act provides no definition for the word "employed" it was necessary to go the the common law to determine whether or not the crews of the Mime'j vessels were employed (para 37-8). In doing so, the aboriginal world view would suggest that the "various fishers are engaged in a variety of separate joint venture operations" (para. 39).

After a detailed review of the principals of statutory interpretation and the applications of those principals to the Act, the court concluded that Mime'j was an employer under the Act without the need to resort to the common law. Consequently, it was not necessary to consider the aboriginal world view on the definition of employment.  

Taxation - Treatment of Funds received from Sale of Licence to Government Licence Retirement Program

Winsor v. Canada 2007 TCC 692 [link]

This case involved the Atlantic Groundfish Retirement Program, (the "AGLRP") under which the Federal Government purchased fishing licences for the purpose of reducing the number of persons participating in the ground fish fishery. The Appellant was a fish harvester who sold his fishing licences to the AGLRP and agreed to permanently leave the commercial fishery for a total payment of $120,000. $60,000 of this money was allocated to the fishing licences. Following the disposition of the licences, the fish harvester filed an income tax return which included one half of the amount allocated to the licences ($30,000) in income pursuant to s. 14(1) of the Income Tax Act, which deals with eligible capital property.

The issues in this case were whether the funds received from the disposition of these licences should be:

1) Included in income pursuant to s. 14(1) as a sale of eligible capital property;

2) Included in income pursuant to s. 38 as taxable capital gain; or

3) Not included in income at all.

With respect to the first issue, the court embarked upon a complicated review of the mirror image rule and concluded that "since the Federal Government was acquiring these licences for a non-commercial purpose no part of the amount received by the Appellant for his fishing licences would be included in determining E in the definition of “cumulative eligible capital” and hence no amount would be included in the Appellant’s income under section 14 of the Act in relation to the amount received by the Appellant for his fishing licences" [para. 12]

With respect to the second issue (s. 38), the court concluded that in order to treat the proceeds of sale of a fishing licence as a capital gain, it would first be necessary to determine whether a fishing licence was "property" for the purposes of the Income Tax Act. After a review of some of the more recent non tax cases on the subject (including Royal Bank of Canada v. Saulnier,  which has an appeal pending before the S.C.C.) the court concluded that a fishing licence was "property" for the purposes of the Act. Since the licence could not be treated as eligible capital property pursuant to s. 14, and since the licence could be treated as property, the court ruled that the disposition should be treated as a capital gain.

Editor's note:   For a case which ruled that the costs of acquiring a fishing licence should be characterized as being on capital account see F.A.S. Seafood Producers Ltd. v. Canada   (Tax Court of Canada) (Bowie T.C.J.) [1998] T.C.J. No. 664, 52 D.T.C. 2034 [link] digested herein

Constitutional Cases - Occupational Health and safety aboard ships is a Matter within the exclusive jurisdiction of the federal Government

R v. Mersey Seafoods Ltd. 2007 NSSC 155 [link] 

Based upon the interjurisdictional immunity doctrine the court held that the Nova Scotia's  Occupational Health and Safety legislation was inapplicable  with respect to fishing vessels.  Alternatively, it is inoperable pursuant to the Paramountcy doctrine.

Editor's note: For a discussion of the interjurisdictional immunity doctrine see:  A Reformulation of the Interjurisdictional Immunity Doctrine - Case Comment on Canadian Western Bank v. Alberta and British Columbia (A.G.) v. Lafarge   Presented by Brad Caldwell to the maritime subsection of the B.C. branch of the Canadian Bar Association 25 October 2007.

Contracts - Trust Agreement made for purpose of circumventing residency Requirements and limit of one fishing Licence

Loder v. Citifinancial Canada Inc. 2007 NLCA 78 [link]

This case involved a fish harvester who purchased a fishing licence for $130,000.  Since the licence included a requirement that the holder be a resident and an additional requirement that limited persons to holding only one licence, the purchaser entered into an arrangement to have a third party hold the licence in trust for him.  

Upon the third party getting into financial difficulties, judgments were registered against him with the result that a sheriff received funds earned from the licence.  The purchaser of the licence then made a court application for payment of those funds to him based upon the trust agreement. 

In refusing to enforce the trust agreement, the chamber's judge distinguished an earlier line of authorities that have enforced such agreements, including B.C.P. v. Sparrow (1989), 35 B.C.L.R. (2d) 334 (B.C.C.A.) as cases dealing with trust between vendor's and purchasers. Since the trust in questions was not such a trust, the court refused to enforce it because the applicant did not come to court with clean hands. 

Upon appeal, the  appeal court reviewed  the authorities and concluded that "the authorities do not support the restrictive view stated by the Chambers Judge" [para. 15].  The court further stated:

Clearly the foregoing decisions, including those of this Court in Green v. Harnum, confirm that the registered holder of a DFO fishing license can bind himself or herself contractually respecting not only disposition of the license but the ongoing economic benefits therefrom, and that conversely non-license holders can enforce agreements with license holders in that regard.  As noted in B.C. Packers there is no express statutory or regulatory prohibition against the transfer of a beneficial interest in a fishing license. [para. 21]

Judicial Review/Crown Liability - Whether or Not Necessary to Pursue Judicial Review proceeding Prior to Tort Action

Donovan v. Canada (Attorney General) 2008 NLCA 8 [link]

This case involved  three  crab fishers who commenced three separate tort actions against the Crown for failure to renew crab licences. The application's judge struck all three actions on the grounds that the causes of action involved challenges to ministerial decisions which were matters within the exclusive jurisdiction of the Federal Court.

Upon appeal, one appellant was successful and two were not.

The successful appellant was George Perrot who sold a portion of his fishing enterprise to a third party but retained his supplementary crab licence.  In doing so, he alleged that a D.F.O. employee told him he could retain the licence until he re-acquired another boat.  He further alleged that the D.F.O. employee neglected to inform that he must renew the licence annually in order to retain his eligibility. Several years later when he applied to renew his licence, his application was denied because of his earlier failure to annual renew the licence.

Since Perrot's licence would have been renewed in the normal course of events without arbitrary decision making by the Minister, the court ruled that the validity of the Minister's decision to not renew need not he determined by the court.  As a result, this was in essence a negligence action that was within the jurisdiction of the superior court.

The cases of the other two appellants involved refusals to renew licences after fishers had been charged with fisheries offences and found not guilty. In these cases, the appeal court ruled that the Federal Court had exclusive jurisdiction because "the common theme of all the allegations against the Crown by Duffett and Donovan was 'inextricably tied to the cancelling of the Permit for the 2000 Snow Crab fishery and the refusal to issue a Permit for the 2001 Snow Crab fishery'" (para. 18).

Since the Superior Court has concurrent jurisdiction over torts actions against the Crown, the proper procedure was to grant a stay pending determination of the validity of the ministerial decision, rather than than striking the statement of claim.

Contracts - Dissolution of Partnerships -

Practice - Ascertainment of  Income From Fishing Licences - Effect of Deliberate Obstruction of Evidence

Harnum v. Green 2007 NLCA 57 (link);  leave to appeal denied [2007] S.C.C.A. 538

This case involved a fishing enterprise type partnership where one partner continued to carry on the enterprise after the break up of the partnership. This appeal concerned the following issues:

(1) Whether the trial judge erred in law in determining that the value of the assets, for the purpose of sharing between the partners, is the value at the time of distribution and sale of the assets rather than the estimated value as at dissolution;

(2) Whether the trial judge erred in determining the share of post-1999 income of the partnership payable to the departing partner on the basis of the estimates, without admitting the income tax returns of the partner who continued the business; and

(3) Whether the trial judge erred in ordering that the licences and the boat be sold.

With respect to item one (time of valuation), the appeal court ruled that the time of the valuation would be the time at which the assets are distributed. As a result the departing partner retained the benefit of an increase in value of the assets.

With respect to item two (entitlement to post break up income), the court ruled that "[w]here a partnership has existed and has either been dissolved, or if there has not been a formal dissolution but a partner has 'otherwise stopped being a partner', without a final settlement of accounts as between the partners, and one or more partners continue to use the assets, name or business connections and earn income, that income must be accounted for to the partner or partners who have not continued to make use of the partnership assets, name or business connections" (para. 60).

In this case, the only real income producing assets were the fishing licences. Since the partner that continued to carry on the business deliberately obstructed the court's ability to provide the other partner with an accounting, the court relied upon the unchallenged  expert evidence of the departing partner regarding the the type of income that fishing enterprises of the same type normally earned during the relevant time period.

With respect to item three (order for sale of licence and vessel), since there was a true dissolution of the partnership, under the provisions of the Partnership Act, a partner is entitled to insist that the partnership property be sold to ascertain its true value.

Aboriginal Rights and Defences - Justification

R. v. Douglas 2007 BCCA 265 leave to appeal denied [2007] S.C.C.A.352 [link]

This case involved a dispute between the Cheam First Nation and D.F.O. over D.F.O.'s decision to open a marine sport fishery permitting retention by non-aboriginal fishers of Early Stuart sockeye. This is run of special significance to the Cheam and most of the other First Nations on the  Fraser river  because (1) it is the first run of the season, and (2) it has a high fat content and high quality. At trial the Crown conceded that there had been infringement, but argued that infringement was justified.

With respect to justification, the Cheam argued that the Crown's decision to open the marine sport fishery at a time when there were restrictions on the aboriginal fisheries was not in accordance with the honour of the Crown (the second part of the Sparrow justification test) because (1) it failed to give priority to the aboriginal right and (2) D.F.O. made the decision without consulting the Cheam.

At trial, the Crown was successful.  At the summary conviction appeal level, the Cheam were successful. 

Upon further appeal to the B.C.C.A., the Crown was successful.  With respect to the issue of consultation, the B.C.C.A. ruled that the Crown's consultation was adequate for the following reasons:

1) Having conducted appropriate consultations in developing and implementing its fishing strategy, D.F.O. is not required to consult each First Nation on all openings and closures throughout the season, where the actions are consistent with the overall strategy (para. 42);

2) Even if the marine recreational opening was not consistent with the strategy developed through consultation, there was no duty to consult because the opening had no appreciable adverse effect (para. 44); and

3) Given the finding that the Cheam did not fulfil their reciprocal obligation to carry out their end of the consultation, to require the Crown to consult on a minor issue goes beyond what is required to justify D.F.O.'s conduct (para. 45).

With respect to the issue of priority, the court said as follows:

As part of the contextual analysis into priority, it will sometimes be necessary to consider the practical difficulties occasioned by the movement of the fish themselves: Sparrow, supra, at 1116, citing R. v. Jack, [1980] 1 S.C.R. 294 at 313.  The Fraser River sockeye encounter numerous fisheries, including aboriginal, recreational and commercial, as they migrate from the Pacific to their spawning grounds.  If a non-aboriginal fishery could never precede any of the aboriginal fisheries, the result would be an exclusive food, social and ceremonial fishery, regardless of need and abundance of stock.  That cannot be the intended result of Sparrow, where the Court stated that the objective of the priority requirement is to guarantee that fisheries conservation and management plans “treat aboriginal peoples in a way ensuring that their rights are taken seriously” (at 1119). [para. 54]

In this case the court noted that brunt of the conservation measures were borne by the sports and commercial fishery, which combined caught only 216 fish out of a total of approximately 206,000 fish.

As noted above, lease to appeal to the Supreme Court of Canada was denied.

Offences -  Forfeiture (relief) - Failure to Obtain extension of Detention Order

R. v. Shiner 2007 CanLii 54641 (NL P.C.) [link]

This case involved the seizure of a large number of seal pelts pursuant to a prosecution under the Marine Mammal Regulations. After the expiration of an order granted by a justice of the peace to extend the time for detention of the seized items and before sentence for one accused and the trial of others, the fishers brought an application under both s. 490.01 of the Criminal Code and ss. 71(1) and 73.1(1) of the Fisheries Act for compensation for the value of the seized pelts that had been disposed of.

In this application, the fishers argued that the seized goods or the proceeds of sale there from should be returned because of the expiration of the order extending the time for detention. The Crown argued that the applications were premature.

In denying the application, the court ruled as follows:

1) Based in part upon s. 34(2) of the Interpretation Act, the Criminal Code provisions were not applicable (para. 18);

2) The court has no inherent jurisdiction to order that seized items be returned (para. 32);

3) The failure to obtain an extension of time to hold goods as required by s. 71(3) and (4) of the Fisheries Act does not necessarily make the seizure unlawful or give the court the authority to order the goods released (para. 33);

3) The court had no statutory jurisdiction to order return of the seized items until either (a) at a sentence hearing it has exercised its discretion under s. 72(1) to not order forfeiture; or (b) after the final conclusion of a proceeding under s. 73.1.  For reasons that were not explained, the court also stated an order could result from an evidentiary ruling at trial? (para. 34). 

Editor's note: The court's finding that the Criminal Code provisions regarding seized goods have no application is consistent with an earlier decision of the S.C.C. R. v. Ulybel Enterprises Ltd. 2001 SCC 56  (digested herein) at paragraph 37 [link]. For a B.C. case regarding the legal implications of failure to obtain an extension of time for detention of goods see R. v. Reid [2006] B.C.J. No. 1202, 2006 BCPC 220 (link) (digested herein). 

Offences - Misc. - Failure to Comply with Condition of Licence - Licence not Signed by Holder

R. v. McLenaghan 2008 NBCA 4 [link]

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 Due Diligence - Duty to Ensure Vessel Monitoring System Operational

R. v. Ralph 2008 NLTD 10 (link)

This case involved a fish harvester who was convicted at trial of conducting fishing activity while not being monitored by a Fisheries and Oceans approved Vessel Monitoring System ("VMS"). Upon summary conviction appeal, the appeal court held that the trial judge imposed too high a burden upon the fish harvester.  The appeal court said as follows:

A VMS system was properly installed by a certified installer.  The system was activated and was fully operational in that it was sending e-mails to DFO which were actually being collected and kept in a file.  All positions of the boat were being recorded. The sheet was faxed to DFO on two occasions and the original sent by mail to DFO.  Captain Ralph could objectively assume that a system properly installed, which he was told was activated and fully operational, was in fact the case because it was coming from people skilled in a technical field.  The form required to activate the system was sent by the installers to DFO and he mailed the sheet himself by regular mail. Captain Ralph had a continuous monitor on the boat i.e. the light on the system showing it to be activated.  He was told if the light went out to stop fishing and return to port and this was also a condition of the license.  Captain Ralph also received bills from Stratos showing that his system was being monitored by Stratos.  Captain Ralph, when he went into the M.S. area, or midshore, which was the only place he needed a monitor, called DFO and told them he was going there.  DFO did not say, “Well, we have no record of you being where you say you are.”  All of these actions from the installation to monitoring the light on the system and calling DFO, and receiving bills, is evidence and when considered collectively is the actions of a reasonable person, being Captain Ralph, whose livelihood is to catch fish, watch weather, and maintain the safety of crew and employees. The Crown argues that he should have called to ask if he was being monitored.  A reasonably objective person would assume that had there been a problem and  when he did call into DFO he would have been informed he was not being monitored. But the flaw in the system was on DFO’s end in not properly looking into information coming into the folder.  [para. 29]

 Vessel Offences - Due diligence - mistake of fact

R. v. Patey  2008 CanLII 2132 (Nfld & Lab. Prov. Ct.) [link]

This case involved a angler who was observed by fisheries guardians to be in possession of two recently caught salmon with fish tags that had been affixed in a manner that allowed them to be removed and re-used. At trial, the anglers son gave evidence that he placed drinking straws into the locking mechanism without his father's knowledge or consent.

After a useful review of the law of mistake of fact and a review of the evidence, the court concluded as follows:

The defence of mistake of fact requires an honest belief, reasonably held.  As pointed out earlier, I am satisfied that Mr. Patey honestly believed that his tags had been properly applied by his son.  In this case, considering the nature of their relationship, this was reasonable.  This does not mean that a licence holder can automatically escape liability by delegating a statutory obligation to someone else nor does it relieve a licence holder from checking to ensure that the other person has affixed a tag in accordance with the legislation.  In certain cases, such a delegation will not afford an accused person a defence to a charge under section 6(4) of the Wild Life Regulations.  

In this case the defence of mistake of fact applies because Mr. Patey acted in both an honest and reasonable fashion.  There was no reason for Mr. Patey to be suspicious of his son nor any reason for him to have immediately checked the tags after his son attached them to the salmon.  It was reasonable for Mr. Patey to trust his son and to rely upon him.  If Mr. Patey had checked the tags and failed to immediately ensure that they were properly attached, or if he had, as Mr. Wilcox did, noticed their condition, then the defence of mistake of fact might no longer apply.  However, neither of those scenarios occurred in this case.

Torts - Calculation of loss of Income for Fish Harvester  injured in Motor vehicle accident

Erickson v. Bowie 2007 BCSC 1465 (link)

This case involved a 50 year old fish harvester who suffered  injuries in a motor vehicle accident that prevented him from returning to work on a fishing vessel.  In assessing his claim for both past and future loss of income, the court ruled that the claimant was not limited by his past earnings and made an award based upon the assumption that, but for the accident he would have purchased a black cod licence with his brother and earned income from that licence.

Constitutional Cases - Validity of Provincial Legislation regulating processing, Trading and exporting of fish

Dandy Dan's Fish Market Ltd. v. Newfoundland and Labrador 2007 NLCA 26 (link)

This case involved a challenge to a licence issued under the Newfoundland Fish Inspection Act that imposed conditions restricting a fish processor and wholesaler from exporting fish. After performing a pith and substance analysis, the court upheld the trial court finding that "the core or essential character of the provincial licensing scheme is the regulation of the processing and handling of fish, including crab within the province.  Accordingly, the challenge to the legislation failed.

Editor's note: The court in this case appears to have failed to address whether or not the paramountcy doctrine applied. See the discussion of this doctrine in Canadian Western Bank v. Alberta 2007 SCC 22 (link). See also discussion of this and other cases in A Reformulation of the Interjurisdictional Immunity Doctrine - Case Comment on Canadian Western Bank v. Alberta and British Columbia (A.G.) v. Lafarge   Presented to the maritime subsection of the B.C. branch of the Canadian Bar Association 25 October 2007

Offences Misc. - Setting herring net less than one Fathom Below Water - reasonable doubt

R. v. Pittman [2007] N. J. No. 13 (Nfld. & Lab. Prov. Ct.)

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.

Offences - Misc. - Corroboration required of Evidence of Person Benefiting as a Result of co-operating with the Crown

R. v. Wong 2007 BCPC 297 (link)

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)., [1991] 1 S.C.R. 742, the court was unable to find sufficient corroborative evidence to support a conviction.

Offences - forfeiture upon conviction of non Party Licence Holder - s. 73.1(1) obligation to return Proceeds of Sale of Seized Fish

Kelly v. Canada (Attorney General) 2007 NLTD 127 (link)

This case involved a vessel that was fishing during a closed in situation where the area had been closed by variation order shortly before the vessel started its fishing trip. At the trial of the licence holder, the licence holder did not appear and  in his absence, after hearing evidence establishing the essential elements of the offence, a court imposed a conviction and ordered forfeiture of the proceeds of sale of the seized catch.  At the subsequent trial of the captain, there was no conviction, as one charge was dismissed and one charge was withdrawn. Despite a demand for return of the proceeds of sale of the fish, the proceeds were retained by the Crown.

The vessel owner and captain later commenced a civil action for return of the proceeds of sale pursuant to s. 73.1(1) of the Fisheries Act.  Relying upon Toronto [2002] S.C.R. 77 and other cases, the applicant argued that for the purposes of applying s. 73.1(1), the conviction of a  licence holder (who was apparently not aboard the vessel) ought not to be allowed to trump the acquittal of the captain on the merits.

In response to this argument, the court appeared to concede that in some circumstances "evidence will be admissible to rebut the presumption that the person convicted committed the crime" (quoting form "Toronto"), but found that in the circumstances the applicants had not tendered sufficient evidence to do so.  As a result, the application failed and the Crown was allowed to retain the proceeds of sale.

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 (link)

Although the regulations infringed s. 2b charter rights, the infringements were upheld as a reasonable and demonstrably justified under s. 1(para. 31).

Constitutional cases - Validity of Provincial Legislation prohibiting possession of improperly tagged salmon

R v. Patey [2007] N.J. No. 276 (link)

The case involved a sports fisher, fishing in Newfoundland inland waters who was charged with failing to affix a salmon tag to his fish a required by the provincial Wild Life Regulations.  In defence, he challenged the constitutional validity of the provincial legislation.  The Federal Crown did not intervene.

After reviewing the jurisprudence, the court concluded that the Province and Federal Government had concurrent jurisdiction. In the absence of any conflicting federal legislation to render the provincial legislation inoperative under the paramountcy doctrine, the provincial legislation was enforceable.

Judicial Review/ Crown Liability - Whether Government  of Canada had the Legal Right to Board and arrest vessel in International Waters - No Damages for out of pocket expenses arising from arrest - Test for liability of Crown for actions of servants acting pursuant to invalid legislation

Canada (Attorney General) v. Hijos,  2007 FCA 20 (link); application for leave to SCC dismissed [2007] SCCA 119  (link) 

This case involved a civil action by the owner of the Spanish Trawler "Estai" against the Government of Canada arising out of its highly publicized seizure on the high seas in March of 1995.  In response to various arguments advanced by the vessel owner, the trial court (2005 FC 1011 (link)) concluded as follows:

(1) Pursuant to the terms of the Coastal Fisheries Protections Act the regulations authorizing the arrest of the "Estai" on the high seas were valid and the ensuing arrest was therefore legal;

(2) When arresting the vessel, the authorities were not reckless and did not use excessive force;

(3) Ice damage was not proven;

(4) Given the stay of proceedings and remarkable circumstances, damages were awarded to cover out of pocket legal, ships agents expenses, loss of fishing income, and extra bunkers; and

(5) No punitive damages were ordered.

The Crown appealed the trial court's award of damages and the the plaintiff cross appealed on a number of grounds, the main one being that the trial court erred in concluding that the regulations authorizing the  arrest of vessel on the high seas were not authorized by the Coastal Fisheries Protection Act.

The court rejected the vessel owner's cross appeal primarily upon a conclusion that the challenged regulations were intra virus. However, prior to doing so, it  so it embarked upon an interesting review of the law with respect to the liability of the Crown for damages arising from the enactment of laws subsequently found to be unconstitutional. In doing so, it concluded that the Crown will not be liable unless it can be established that it was either acting in bad faith, was negligent or was reckless (para 61). 

Judicial Review/Crown Liability - Application to Strike Pleadings - Public Trust Obligations - s. 7 fisheries Act

Canada (Attorney General) v. Prince Edward Island [2006] P.E.I.J. NO. 65, 2006 PESCAD 27 (link); leave to appeal dismissed [2007] S.C.C.A. no. 97  [2005] P.E.I. J. 77,

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 without reasons.

Torts - Negligence of Fishing Licence Broker

D.C.T.B. Enterprises v. Original Fishboat Trader 2006 BCSC 1939 (link)

This case involved a series of transactions in 2001 and 2002 where a fishing licence broker acted as agent with respect to the sale of halibut quota for a number of vendors. After the fact, the vendors claimed that the broker was negligent in allowing the 10 per cent Pacific Halibut Management Association ("PHMA") quota associated with their licences to also be transferred to the purchasers.

In dismissing the case against the broker, the court ruled as follows:

My impression is at that the parties approached . . . [the] broker because of her ability to match purchasers with sellers.  While she did draft the listing agreements and purchase and sale agreements, I see nothing to suggest that the vendors were relying on any particular professional expertise that they thought she possessed.

I would add that the confusion under which the vendors laboured was primarily a result of confusing information provided to them by the PHMA in its newsletters.  [She] did not receive those newsletters and had no way of knowing what information or misinformation they contained.

Contracts - Trust Agreements-

Philpott and Hopkins v. Sullivan 2007 NLTD 111 (link)

This case involved a dispute between a fish processor and a  fisher over the enforceability of a trust agreement, which provided that the fisher would hold a crab licence as bare trustee for the processor.  When the processor commenced and action to enforce the trust, the fisher raised a number of defences including non est factum, unconsciounability, and contrary to public policy. After reviewing all of the evidence, the court rejected all of these defences.  With respect to the argument that the agreement was void as being contrary to public policy, the court said as follows:

The agreement is not unenforceable on public policy grounds.   It is true that the License-holding arrangement was structured as it is because of the regulatory requirements of the Department of Fisheries and Oceans. However, the parties to the agreement are not seeking to act or conduct themselves in a manner contrary to the regulations.  The fishing activity contemplated by the License is not being carried on in a manner contrary to the regulations.  Similar agreements have been considered enforceable by the Courts. I restrict my comments on the enforceability of the agreement to the particular circumstances of this case, noting in particular that it is a dispute between the parties to the agreement.  Where third-party interests are involved, or where the purpose of the trust arrangement clearly is to effect a result which is contrary to the intent of the regulatory structure, the result may be different. [para 38 - footnotes omitted]

Offences - Misc. - Circumstances when fishing will be inferred from possession -

R. v. Hawkins [2007] N.J. No. 167, 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.

Offences - Misreporting of snow crab catch - mistake of fact - Offences By employees-

R v. Quinlan Brothers Ltd. [2007] N.J. No. 142 (Nfld & Lab. Prov. Ct.)

This case involved a fish processing company and its two weigh masters who were charged with under-reporting the weight of a load of snow crab by approximately 6,000 pounds.  At trial, the second weigh master advanced a defence of mistake of fact and the fish processor advanced a defence of due diligence.

With respect to the mistake of fact defence, the weigh master argued that he had relied upon weights taken from the grader's sheet, which were in turn taken from incorrect weights provided by an independent dockside observer. In rejecting this defence, the court reasoned that the reliance upon the weights provided by the dockside observer without first cross referencing those weights against the weights independently compiled by the two weigh masters was not reasonable.  

With respect to the due diligence defence advanced by the corporate fish processor, the court rejected a due diligence defence because the "corporate defendant put forward no evidence to suggest it had an established system in place to record the weights, to submit the appropriate forms and to make certain that these forms accorded with fact" (para. 36).The court suggested that evidence of due diligence would have included evidence of: (a) appropriate training; (b) a procedures manual; (c) a rule that the purchase slip should not be signed until the final weigh in has been completed; or (d) a formal system for ensuring that information slips sent to D.F.O. are accurate. As a result, the corporation could not rely upon a due diligence defence to escape from liability for the acts of its employees.

Offences - Misc. - Definition of "Fishing" -

Canada v. White [2006] N.J. No. 361, 2006 NLCA 71 (link)

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]

Offences - Forfeiture of boat and motor - To be considered in applying totality principle

R. v. Cox [2007] N.J. No. 71 (link)

Upon making an order for the forfeiture of a boat and outboard motor, the court said that:

In determining the nature of any fine which is appropriate must consider any forfeiture order in applying the totality principle of sentencing (see R. v. Spellacy (1995), 131 Nfld. & P.E.I.R. 127 (N.L.C.A.)) . . . If counsel seek to persuade a Court that a seized item is of such a large monetary value that its forfeiture would offend the principles of sentencing or that its forfeiture should result in a reduced fine, then counsel must establish the value of the item for which forfeiture is sought.

Offences -  No officially induced error-

R. v. Shiner [2007] N.J. NO. 101, 2007 NLCA 18 (link)

This case involved one of several persons who were charged with selling blueback seal pelts caught in 1996. After a constitutional challenge in the Ward case, the matter was remitted back to trial. After the Crown had proven all of the elements of the offence beyond a reasonable doubt, the trial judge entered a stay of proceedings as a result of a finding of officially induced error.   This finding was based upon evidence that D.F.O. had acquiesced in the fishery for a number of years including the year that it occurred. Such acquiescence included being on the grounds at the time the fishery was being conducted without interfering and taking no steps to warn the sealers that the fishery was illegal. 

Upon summary conviction appeal by the Crown the decision of the trial court was upheld by applying the SCC case of Levis (City) v. Tetreault, 2006 SCC 12.  

Upon further appeal, the defence of officially induced error was rejected because the accused knew the sale of bluebacks was illegal and no statement was made or information furnished by DFO stating otherwise. With respect to inferences made by the accused, the court said "The failure of a regulatory body to enforce a regulation cannot constitute a representation as to the legality of the conduct in issue" (para 48).

Editor's note:  For a paper on this subject pre-dating this case see:  IGNORANCE OF THE LAW IS NO EXCUSE . . . OR IS IT?  The Defence of Officially Induced Error  Fisherman Life July 2006

Offences - Proof of actus reus - definition of "Mobile Gear" including  "Otter trawl" and "Purse seine" 

R. v. Caines [2007] N.J. NO. 2, 2007 CanLII 7 (NL. P.C.) (link)

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. 

Offences - Failing to Accommodate and Observer - Due Diligence

R. v. Decker [2007] N.J.  No. 124, 2007 NLTD 71 

This case involved a seal hunter who was unable to accommodate an observer because he already had a crew of ten and his Canadian Steamship Inspection (CSI) certificate only allowed him to have seven people on board. At trial, the summary conviction court acquitted the accused on the basis that D.F.O. ought to have provided reasonable notice prior to seeking to put an observer on board. Upon summary conviction appeal, the acquittal was overturned on the basis that: (1) there was no statutory basis for imposing a notice requirement for accommodating observers; (2) the vessel owner was not duly diligent because he could have reduced his compliment of crew or upgraded his CSI prior to the commencement or the fishery. 

Offences - offloading portion of catch for crew without an Observer - No Officially induced error-

R. v. Cassell [2007] N.J. No. 94  2007 CanLII 6836 (NL. P.C.) (link)

This case involved a  snow crab fisher who offloaded all but two trays of crab while a dockside observer was present.  The remain two trays were retained for crew members to take home.   Upon being confronted by a fisheries officer while the crab was still aboard the fishing vessel, the fisher was given a written warning that all fish had to be monitored before it could be offloaded, but advised that he would not be charged. This decision not to charge was later over-ruled by the supervisor of the fisheries officer. 

At trial the accused raised a defence of officially induced error. In doing so, he gave evidence that if he thought that a charge was being contemplated he would have arranged to get a dockside observer to monitor the unloading of the last two trays of crab or returned them to the ocean. 

After reviewing the recent jurisprudence on officially induced error, the court ruled that since it was open to an investigator to change his or her mind about whether or not to lay a charge, delivering a written warning  was not sufficient to create a defence of officially induced error. 

Offences - closed area - due diligence - Def'n of "Fishing" - Proof beyond a Reasonable Doubt

R. v. Biggin 2007 CanLII 13690 (N.L. P.C.) (link)

This case involved a commercial crab fisher whose marked crab traps were found well within a closed area.  After a useful review of the law regarding due diligence, mistake of fact, the definition of "fishing" and the onus of proof, the court rejected a due diligence defence on the following basis:

In this case, the crab pots were well within the closed area and this is an area that Mr. Biggin is very familiar with.  When Mr. Biggin set his crab pots in this area, he must have known, or ought to have known, regardless of how he read or interpreted his GPS system, that he had entered into area 13.  To set crab pots outside of the area described in your licence indicates a degree of carelessness or negligence on Mr. Biggin’s behalf that refutes any suggestion of having acted reasonably or diligently.  Thus, Mr. Biggin has failed to establish that he acted with all due diligence or by reason of a mistake of fact. (para 41)

Offences - Forfeiture -Whether forfeiture should be considered part of the sentence

R. v. McNeill [2007] B.C.J.  NO. 1178, 2007 BCSC 773 (link) 

This is a sentencing case involving the poaching of a large number of abalone. In ruling that forfeiture of a boat, truck and other equipment should be considered part of the overall sentence (so as to reduce the fine or other sanctions that might otherwise be imposed), the court distinguished R v. Sandover-Sly 2002 BCCA 56 as a case where the accused had no property interest in the property being forfeited (para 79 & 83).  It also relied upon R. v. Ulybel Enterprises Ltd. [2001] 157 C.C.C. (3d) 153 for the proposition that forfeitures is "one of the penalties available to the courts . . . " (para 80).

Editor's note:  For a non fisheries case that takes a similar approach see R v. Craig [2007] B.C.J. No. 814, 2007 BCCA 234 at paragraph 78. 

Offences - By Licence Holders and Employers - Due Diligence Requirement

R. v. Emil K. Fishing Corp. {2007 B.C.J. NO. 471, 2007 BCSC 320 (link)

This case involved charges against the the owner of a salmon fishing vessel for unlawfully retaining  incidental catch of sockeye and coho salmon. Since the owner of the vessel was not aboard at the time of the offence, the owner was charged under both s. 78.3 of the act with respect to liability of employers and s. 78.4 with respect to the liability of licence holders.  In applying these sections, the court followed F.A.S. Seafood Producers Ltd. [2000] B.C.J. 1625 for the proposition that the requirement that the licence holder or employer establish that the offence was committed without his or her knowledge or consent imports a due diligence or reasonable care defence.   In applying this test, the trial court found the owner/licence holder had exercised due diligence by ensuring that: (1) His boat had perfect gear; (2) the crew were instructed to take care not to catch Sockeye or Coho; The crew were instructed to watch what they were doing and keep the regulations; (3) the skipper had been told to fish and do everything the way it was supposed to be. The court also relied upon R. v. Harris [1997] N.S.J.  484 (N.S.C.A.).

Upon summary conviction appeal, the acquittal of the trial court was upheld on the following basis:

The Gulf of Georgia case [(1979) 10 B.C.L.R. 134] points out that what may be appropriate safeguards in “bycatch” violations in fisheries cases may be different or inadequate for cases involving oil spills and other significant toxic environmental harm.  That is, the steps taken to establish due diligence will depend on all the circumstances including the magnitude of the damage in the likelihood of a mistake (or breach).  In my view, while conservation of fish stocks is very important, the kind of “mistake” or infraction at issue in this case simply cannot be compared to the effects of toxic spills into waters where both fish and human health are significantly jeopardized. [para 40]

Judicial Review/Crown Liability - Jurisdiction of Federal Court/Superior Ct - Duty to Seek Judicial Review prior to action for damages - Negligence Misrepresentation of Fisheries Officer

Genge v. Canada (Attorney General) [2007] N.J. No. 59, 2007 NLTD 36 (link) 

This case involved a negligent misrepresentation action against the Crown arising from a fisheries officer who mistakenly advised a seal fisher that a seal hunt had closed.  The Crown brought an interlocutory application for an order striking out the claim on the grounds that t\he court lacked jurisdiction and and order that the claim could only take place after the applicant has made an application for judicial review.

In refusing the Crown's application, the court followed Keeping v. Canada (Attorney General) 2002, 210 Nfld. & P.E.I.R. 1 (digested herein), to find as follows:

I find that the “essence” of the Respondents’ claim is that a fisheries officer made a “terrible mistake” which cost them financially. The mistake had nothing to do with the official capacity of the fisheries officer. It had nothing to do with the management of the seal fishery, the Fisheries Act, the Regulations, the Management Plans, Directives or Orders. The claim arises out of a federal employee that was not paying attention or was too distracted to properly inform himself of the true factual situation. It was a human failing and not an “official” failing.  (para 9)