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These summaries are prepared by Brad Caldwell,
401-815 Hornby Street,
Vancouver, B.C.,
V6Z 2E6.
Telephone (604) 689-8894 -
Facsimile (604) 689-5739 E-mail: bcaldwell@admiraltylaw.com
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)
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