Fisheries Offences Cases

Recently posted cases are located on the Main Fisheries page (link). 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.

Offences - Due Diligence

This is pronouncement by the Supreme Court of Canada on the civil burden of proof "on a balance of probabilities". Although this is not a fisheries case, since this is the burden of proof by which an accused fisher must establish a due diligence defence, it is an important decision for fisheries prosecutions. In this case the court rejected an approach requiring a shifting burden depending on the gravity of the offence and proclaimed that "there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred." (para. 49).

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:

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:

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

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.

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

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:

Offences - Due Diligence - Failure to maintain proper distance from lobster traps

This case involved a trawl vessel that commenced fishing in a area where a lobster vessel had already set a string of traps. After entangling its trawl gear in the string of lobster traps, charges were laid under s. 37(1) of the Atlantic Fishery Regulations for failing to maintain a distance of at least one-half nautical mile between the trawl vessel and a previously set lobster trap.

After an interesting review of the law relating to the due diligence defence and the overlapping nature of the mistake of fact defence, the court rejected the trawler's due diligence defence on grounds that the vessel failed to attempt to contact the Lobster vessel on either of the two radio channels which the lobster vessels were known to use.

Offences - Due Diligence - burden of proof - s. 25(3) proof of permission to allow gear to remain in water after closure

This case involved a charge of fishing for crab during a closed time. The accused ran a defence based upon evidence that he had been unable to retrieve his crab traps prior to the end of the season because of bad weather. He gave evidence that he contacted someone named "Tony" at the St. John's office who advised that "they were allowed 'as in previous years' , to remove their pots from the water and could keep the crabs that were removed. Notwithstanding the fact that he disbelieved this evidence, the trial judge applied the R. v. S.(W.D.) (1994), 119 D.L.R. (4th) 464 (SCC) test and acquitted because "it's possible that it's true".

Upon summary conviction appeal, the appeal court found that the court erred in applying the R. v. S.(W.D.) to the question of whether or not the accused exercised due diligence to avoid committing the defence. Accordingly, it set aside the acquittal and entered a conviction.

Based upon this section, if permission was was actually given to have gear remain in the water, then it could be argued that the actus reus of the offence of fishing during a closed time did not occur as the close time was effectively extended under s. 25(3). If so, the trial judge was correct in applying the W.D. test instead of the proof on a balance of probabilities under the second branch of the Saulte St. Marie test. Unfortunately the oral reasons appear to be have been rather fragmented and in any event were not produced in their entirety in the judgment.

Offences - failure to sink bait Gillnet one meter beneath Surface - Due Diligence

This case involved charges against a lobster fish harvester who had a bait fishing licence to catch herring by gillnet. It was a condition of the bait licence that the head rope of the net be at lease one meter below the surface of the water so as to allow Atlantic salmon to swim over the net. After finding the net on the surface with three Atlantic salmon in it, the owner was charged. Given the evidence that these nets were sometimes tampered with, the fact that the knots shortening the buoy lines appeared to have been tied in a hurry and the credible evidence of the accused that he checked the net the night before it was found, the court ruled that a defence of due diligence had been established.

Offences - Due Diligence - Catching and retaining undersize oysters - Failing to return to water "forthwith"

This case involved an oyster fisherman who collected 7 tubs of oysters in his boat over a period of two hours and forty minutes and then moved to a more sheltered area adjacent to his oyster lease to sort the oysters and discard the undersize. Of 5,306 oysters, 4,480 were undersize. While acknowledging that under some circumstances the need to sort the oysters in a sheltered location might amount to a due diligence defence, on the facts of the case no such defence was established. After reviewing the authorities, including R.v Symmonds (1994), 138 Nfld & P.E.I.R. 109 and s. 33 of the Fishery (General) Regulations, the court ruled that since the accused failed to return the oysters to the water "forthwith," he was guilty of retaining undersize oysters.

Offences - Due Diligence - Not necessary for captain to check accuracy of crew measurements of crabs when crabs inaccessible at bottom of live tanks.

R. v. Chandler (3 June 2004) File No. 23728 Prince Rupert Prov. Ct. (Seideman Prov. Ct. Judge) upheld on appeal 7 December 2005 (Court File No. 23728 Prince Rupert Registry) (B.C.S.C.)

This case involved the captain of a crab fishing vessel who was charged with possession of undersize crabs. In upholding the trial judges finding of due diligence, the summary conviction appeal court distinguished two lobster cases (R. v. Cameron [1996] N.S.J. 83 and R. v. Morrison) because unlike the lobster cases, after the initial measuring by the crew member the crabs were not accessible to be checked until they were off loaded at the end of the trip. In applying the test set out in R. v. Gulf of Georgia Towing Ltd. 10 B.C.L.R. 134 (BCCA), the court said, "in the present case, it could not be said that the consequences of possessing undersized crabs has the same consequential environmental impact as an oil spill, particularly given the ability to mitigate the possession of crags by returning the crabs to the sea when sorted by the buyers" (para 43).

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

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

Offences Misc. - Variation orders - Publication in one regional paper with no proclamation date not reasonable notice

Offences - Due Diligence - Proof of due diligence not required until after Crown proves proper notice of variation order

This case involved a fisherman who was charged with catching six undersize lobsters out of a total catch of 100 to 150 lbs of lobsters. Despite evidence that he used a properly calibrated measuring device, the trial judge rejected a due diligence defence and apparently a separate defence based upon the maxim de minimus non curat lex (the law does not care for, or take notice of, very small or trifling matters). Upon both summary conviction appeal and upon further appeal to the Nova Scotia Court of Appeal, the decision of the trial judge was upheld. As well, the court rejected a new defence based upon mistaken of fact.

Editor's note: This case contains a useful review to the tests to be applied in a appeal of a decision of a summary conviction appeal court. With respect to the court's rejection of the de minimus defence, while technically correct, the de minimus type considerations are usually subsumed into the application of the due diligence test. For example, if the six undersize lobsters were only a millimeter undersize, it would be open to the trial court to find that despite the failure to grade out the undersize lobster the fisherman did everything reasonable under the circumstances to avoid committing the offence.

This case involved a charge of having on board a fishing vessel scallops having more than the permitted average count of 45 meats per 500 grams. At trial a number of defences were raised including (1) illegal search, (2) due diligence, and (3) mistake of fact.

With respect to the due diligence and mistake of fact defences, the accused unsuccessfully argued at trial that he was duly diligent by employing the "milk can" method of measurement recommended by a local fisheries officer. After a lengthy review of the jurisprudence and the facts, the summary conviction appeal court upheld the trial court's rejection of the due diligence defence. In doing so, it note that the accused did not produce the milk cans at trial for inspection by the court. In addition, there was no evidence of the qualifications of the designer of the system, there was no evidence that the system put in place by the accused was the same as the system recommended, and there was no evidence of any satisfactory measures taken to verify the accuracy of the system.

Offences – Due diligence defence (Fishing in Excess of quota) - Improper delegation defence

This was a summary conviction appeal of a case that involved a charge against the owner of a ground fish vessel for continuing to fish for a species (cod, plaice and halibut) after his allowable by-catch had been exceeded.

With respect to the first issue, the court rejected the accused’s interpretation, which would have allowed him to keep fishing “to see whether the by-catch levels could be offset by higher catches of the directed species”.

The court also rejected both a due diligence and a mistake of fact defence. In rejecting the mistake of fact defence, it applied R. v. Tavares (1996) 144 Nfld. & P.I.I.R. 154 (Nfld. C.A.) for the proposition that for a strict liability offence a mistake of fact must reasonable based upon an objective standard, not the subjective standard of the accused.

With respect to delegation, the accused argued that the delegation of the power to impose terms and conditions on licences pursuant to s. 22(1) of the Fishery (General) Regulations was improper because such a power was a legislative act. After reviewing some conflicting authorities, the court adopted a functional and pragmatic approach to hold that such powers could be delegated.

Editor’s note: For an interesting discussion of the issues surrounding the delegation of licence conditions see the Sixth Report (Report No. 71) of the Standing Joint Committee for the Scrutiny of Regulations 30 May 2002. It appears that some of the arguments raised by the accused in this case may have come from this report.

See also the companion cases of R. v. Forsey 2003 NLSCTD 57 (digested herein) and R. v. Rideout 2003 NLSCTD 58 (digested herein).

Regina v. Puratich (5 June 2002) Port Alberni Registry No. 30568(B.C. Prov. Ct.) (Klaver, Prov. Ct. Judge)

This case involved charges against a fisherman of landing halibut contrary to his commercial trawl licence on three different occasions. This licence provided that the fisherman could land an unlimited amount of turbot but only a set quota of other species caught as a by-catch. When these quotas are reached the vessel must stop fishing. The vessel is not allowed to catch any halibut. If caught, the halibut must be returned to the sea. Once a pre-defined limit of halibut deaths has been reached, the vessel must stop fishing.

Even though the Department of Fisheries and Oceans (“D.F.O.”) purports to have a zero tolerance for landing halibut, in actual fact D.F.O. approved a practice whereby landed halibut were donated to local charities. D.F.O. appeared to allow its individual enforcement officers to decide when the amount of landed halibut was sufficient to justify laying charges.

With respect to the defence of due diligence, the fisherman lead the following evidence:

Although D.F.O. argued that the vessel should not go out in bad weather, the court appeared to reject this argument and dismissed the case based upon a due diligence defence.

Offences – Due Diligence – Wrong area - Mistake of Fact – Officially Induced Error

R. v. Rideout [2003] N.S.J. No. 100, 2003 NSPC 5 (N.S. Prov. Ct.) (Ross, Prov. Ct. J.)

This case involved a crab fisherman who was charged with contravening a condition of his licence that only allowed him to fish in sub-area 23d. At trial it was established that the accused was fishing outside sub-area 23d based upon a mistaken but honest belief that he was inside sub-area 23d. At issue in the case was the application of the due diligence and/or officially induced error defence.

The evidence was that the conditions of the licence of the accused only described a portion of sub-area 23d making it necessary for the accused to either obtain a copy of the regulation or contact D.F.O. in order to obtain the co-ordinates of the boundaries of area 23.

After an interesting discussion of the overlapping nature of these defences, the court concluded as follows:

Postscript: For a decision of the Supreme Court of Canada on officially induced error see Levis (City) v. Tetrea 2006 SCC 12 (reasons)

R. v. Kavanagh [2002] N.J. No. 124 (Nfld. & Labrador P.Ct.) (Hyslop Prov. Ct. J.)

This case involved a charge against a crab fisherman under s. 63(3) of the Fisheries Act of producing a fishing log with a misleading or false estimate of the size of his catch.

Evidence was lead at trial that although discrepancy of 5 to 10 per cent was not uncommon, the actual catch of the fisherman was 33.6 per cent higher than his estimate. Given the fact that the accused was an experienced captain and crab fisherman who was also familiar with his vessel and its capacity, the court relied upon R. v. Petten (1995) 129 Nfld and P.E.I.R. 37 (Nfld. S.C.T.D.) and R.v. Vanbuskirk (2000) 143 C.C.C. (3d) 274 (N.S.C.A.) (digested herein) to convict.

In rejecting a due diligence defence, the court did concede that “an estimate does not require absolute precision and I believe any court would be inclined to offer a degree of latitude, particularly in view of the fact that the evidence supports a variation on practice of between five and ten percent. It is not, for example expected that the captain personally weigh the crab that was caught before arriving at the estimate.” (para. 15)

This case involved the Atlantic Tuna fishery. As a result of an excessive swordfish by catch, D.F.O. negotiated a deal to get extra swordfish quota from Nova Scotia Swordfish Association. This allowed 12 vessels to continue fishing tuna, each with a swordfish by catch allowance of 1.2 tonnes.

After being caught exceeding his quota, the accused attempted a due diligence defence based upon the following:

In rejecting this defence, the court that “because of his experience and awareness of his responsibility under the licence it is difficult to conclude that he could have held a reasonable and honest belief that his way of doing things was the correct way . . . (para. 19).

R. v. Chung Hoa Truong and Ca Lun Ung 19 October 2000 (Surrey Registry No. 106791-01) (B.C. Prov. Ct.) (Rounthwaite, A.E.)

This cased involved a charge of fishing for crabs in waters which were other than Canadian waters. At trial, expert evidence was lead with respect to the difficulty of determining one’s precise position in relation to the border because of such factors as the unreliability of range markers and global positioning systems and the difficulty of precise navigation in rough seas while having to avoid running over the large number of marker buoys in the area. Despite accepting a good deal of this evidence, the court rejected a due diligence defence on the following basis:

Given all the potential difficulties in using the ranges to run along the border, the margin of error built in to the GPS, and the potential difficulties in steering a boat with precision in water occupied by other vessels and thousands of crab traps, it is clear that it is foolhardy to attempt to set a line of traps right along the border. A fisher doing so makes no allowance for any of the factors which might cause a vessel to stray into American waters, and is not exercising due diligence.

In rejecting the defence, the court distinguished the cases of R. v. Starvish [1987] N.S.J. 223 and R. v. Harris (1998) 121 C.C.C. (3d) 64.

This case was a summary conviction appeal by a fisherman who was convicted of failing to provide an accurate hail of the round weight of his catch. In setting aside his conviction and ordering a new trial, the court relied upon the following test as set out in R. v. Doucette (24 November 1998) No. 745660 (N.S.Prov. Ct.):

"Has the Crown proven beyond reasonable doubt that the defendant ‘failed to hail the round weight of cod and haddock, or, in other words, that the defendant failed to use his best skills and judgment in preparing the estimates on which his hail was based?"

This was a summary conviction appeal of an acquittal of a fish boat Captain upon evidence that his son had been "sneaky enough" to hide under the floor without the knowledge of his father.

The court upheld the acquittal without a great deal of analysis. It said "the judge did not want to convict the accused for being deceived by a sneak".

Editor's Note: This can probably best be classified as a due diligence case. That is, a reasonable person in the Captain's position would not be expected to have avoided committing the offence.

This case involved a charge against a fisher for failing to comply with a term of his fishing licence, namely exceeding the amount of by catch of Hake as allowed by his licence. At trial he gave evidence that he relied upon an experienced crew member to follow his instructions. The crew member had been doing the job properly for 1 ½ years prior to the offence.

At the trial level, the trial court judge acquitted the accused on the basis of due diligence. On a summary conviction appeal, the acquittal was overturned. On appeal, Mr. Justice Roscoe giving a unanimous decision for the court overturned the appeal and restored the acquittal.

Editors Note: For a similar case in British Columbia see R. v. Smith (30 Oct. 96) digested herein.

This case involved a charge of possession of undersize lobsters. After the lobsters were seized, they were put in a bucket and carried by a fisheries officer to his truck. He then put the lobsters in a bag and marked it with a black marker. The bag was put into a freezer where it was stored until the evening before the trial. At trial, the Accused claimed that he measured the lobsters on the day they were seized and they were all legal according to his measurement. At trial, the lobsters were measured and found to be undersize. The trial judge found that the Crown had established continuity beyond a reasonable doubt.

The trial judge also rejected a due diligence defence based upon 8 undersize lobsters out of "a small catch of less than 150 pounds."

The accused was the owner of a gill net vessel which participated in a commercial chum opening. His regular deckhand was not available and he was therefore required to hire another experienced deckhand. Before doing so, he obtained the recommendation of a previous employer of the deckhand. Evidence was led that it was common practice for gill net vessels to hire deckhands so as to give the owners an opportunity to sleep.

During the opening, the accused was tired and decided to have a nap. Prior to taking his nap, he entered the co-ordinates of the fishing area boundary into the Loran and instructed the deckhand on how to use the Loran to ensure the vessel stayed clear of the closed area. The deckhand assured him that he was fit to take over.

While the accused was asleep, the deckhand failed to properly carry out the accused's instructions and the vessel crossed over the boundary into a closed area.

At trial, the trial judge acquitted the accused on the grounds that he " took all the care that a reasonable man might have expected of him under these circumstances." On appeal, the Court applied the test in R. v. Sault Ste. Marie and upheld the decision of the trial judge.

Offences - Variation Orders

This case involved a charge against an inshore cod fisherman for fishing during a closed time (see digest of earlier decision from this case in 1997). This case is a summary conviction appeal on the grounds that the Regional Director General improperly delegated his authority to sign a variation order closing the fishery.

After reviewing the authorities, and concluding that the closing of the fishery was a legislative act, the court upheld the validity of the delegation and denied the appeal. In doing so, the court referred to section 4 of the Atlantic Fishery Regulations and said as follows:

In my respectful view, in looking at the issue of delegation of the powers granted under the Act, a proper interpretation of its real purpose and object requires a reading into Section 4 of the Regulations after the words “a Regional Director-General” the words “or any person authorized by him or her” in the absence of a clear statutory intention to the contrary, which I do not find in the Act.

Regina v. Gorman (7 January 1998) Port Hardy Registry No. 10284 (B.C.S.C.) (Bauman J.)

This was a summary conviction appeal of an order of a Provincial Court acquitting an accused fisher of an offence on the grounds that a Variation order had not been published in the Canada Gazette. The appeal court set aside the acquittal on the grounds that sections 15(1) and 7(1) j of the Statutory Instruments Act had not been brought to the trial judges attention. These provisions provide as follows:

15(1) The classes of regulations that are exempt from registration are hereby exempt from publication. S. 7(j) of the Regulation exempts from the registration requirements: (j) orders made by a person engaged or employed in the administration or enforcement of the Fisheries Act whereby a close time, fishing quota, or limit on the size or weight of fish that has been fixed in respect of an area under regulations made under that Act, is varied in respect of that area or any portion of that area.

This case involved a variation order which declared that fishing was prohibited in a local area "beginning on January 1 and ending on December 31". The trial judge ruled that the variation order was vague and that it failed to properly prohibit fishing during a "specified period" as within the meaning of the Act.

The appeal was allowed and the case remitted to trial court for continuation of trial. Parliament intended to entrust those responsible for the control and harvesting of groundfish with sufficient flexibility and power to respond quickly to fishery issues as they arose. It was not reasonable to require that the Regulations be redrafted with respect to each fishery closure. The court reviewed an number of authorities supporting the proposition that the Regulations had to be given a fair and liberal construction and interpretation. In the circumstances, the variation order was properly issued and consistent with the Regulations which were designed to apply from year to year. The variation order was not vague and it should have been clear to all fishermen that the areas in question were closed for fishing as of July 10 and thereafter until a subsequent variation order was issued by the proper authorities.

Offences - Search and Seizure

This is a non-fisheries decision that purports to provide a new analytical framework for (1) determining whether or not there has been a detention for the purpose of ss. 9 and 10(b) of the Charter; and (2) determining whether or not to exclude illegally obtained evidence under s. 24(2).

With respect to its application to fisheries cases, at paragraphs 78 and 113-14, it is similar to the fisheries case of R v. Fitzpatrick [1995] 4 S.C.R. 154 (paragraphs 49-51) [link] with respect to its emphasis on the expectation of privacy as a matter to be considered under the s. 24(2) analysis. In particular, at stage two of the newly formulated test, expectation of privacy is one of the factors to be considered in assessing the impact of the impugned state conduct on the interest protected by the infringed charter right. Given the court's reference to R. v. Buhay 2003, SCC 30 [link] at para. 113, it would appear that reasonable expectation of privacy is also still relevant to the issue of whether or not there has been a breach of the s. 8 right against unreasonable search a seizure.

This case involved a motion during a trial to exclude a statement made by the accused to a fisheries officer. Prior to the making of the statement the accused had been given a Charter warning and had advised that he did not want to call a lawyer "at this time". Based upon the British Columbia Provincial Court decision of R. v. Liddell, [2008] B.C.J. NO. 947, defence counsel argued that the words not "at this time" did not amount a waiver. The Nova Scotia court refused to follow the B.C. court and held that there had been a valid waiver.

The court also rejected an argument that the accused must be offered access to a lawyer with expertise in fisheries matters.

Offences - Misc. - Admissibility of statements made to Fisheries Officers during Investigation

This decision involved the admissibility of statements made by four seal harvesters to DFO officers in the course of an investigation on charges related to illegally selling blue back seal pelts. In each case, the accused harvesters were contacted by telephone and then interviewed by Fisheries Officers in the front seat of DFO vehicles parked in front of their homes.

At a voire dire hearing to determine the admissibility of these statements, the court declined to rule them inadmissible as a breach of the Charter because it was not established that the harvesters were detained.

With respect to the issue of whether or not the statements were voluntary, the court noted that the Crown had the onus to prove the statements voluntary. In this regard, at trial the fisheries officer had difficulty recalling the the interviews that had occurred approximately ten years previously. In addition, there were no notes except for copies of the Charter type warnings that had been annotated and initialled. In this case some, but not all the answers were initialled. In the case of answers that were marked with a check mark but not initialled ("Do you want to speak to counsel"), the court was not prepared to accept a bare check mark as evidence that the warning had been given and waived.

On the basis of this evidence, the court ruled that the Crown had not satisfied the onus of establishing that the statements were voluntary.

Offences - Misc. - admissibility - relative remoteness or proximity of inculpatory statement to Prior illegal search

This case involved an aboriginal person charged with illegal harvest of eight pieces of abalone after a park warden opened a parcel that the accused had entrusted with a Parks Canada employee to deliver to his wife. After ruling evidence of the initial opening of the parcel illegal under the Charter of Rights, the court commenced a separate voire dire to determine the admissibility of an inculpatory statement made by the accused to DFO that occurred several months later. After reviewing the applicable jurisprudence, the court excluded the statement because the only reason that the accused visited the fisheries officer who took the statement was to enquire about the seizure of the parcel. Accordingly, the statement was a direct result of the prior illegal search.

Upon summary conviction appeal, the appeal court ruled that the act of waiting and watching some undersize lobster that had been discovered pursuant to a legal inspection under s. 49(1) of the Fisheries Act, "from within a warehouse, which was a limited access building that was used by a number of public agencies for various purposes" (para. 23) did not amount to an illegal search.

Search and Seizure - Demand by fisheries offices to attend at fisheries office with illegally harvested Narwhal tusk - No credibly based suspicion sufficient to trigger statutory power of inspection -

This case involved a s. 8 Charter challenge of a warrantless inspection/search of a fish farm facility which in addition to finding unlicensed fish also discovered a large marijuana grow operation.

Offences - Search and Seizure - seizure of documents subsequent to inspection pursuant to s. 49 of the Fisheries Act not violation of s. 8 of the Charter - Powers to seize and detain evidence pursuant to S. 51 and 71(1) of Act do not violate s. 8 of the Charter.

Offences - Search and Seizure - No reasonable expectation of privacy in premises of third party - Also sufficient ground for inspection

With respect to the illegal search argument, the vessel had initially been inspected at sea and then searched more thoroughly when it arrived at its home port. At trial, the accused unsuccessfully argued that the fisheries officers should have obtained a search warrant before conducting the second search at the home port. Upon appeal, the summary conviction appeal court upheld the decision of the trial judge after reviewing a number of cases including R. v. Kinnear (1997) 148 Nfld. & P.I.I.R. 163 (digested herein). It did so based upon the trial court's finding that "[t]he knowledge and belief of the fisheries officers [after the first inspection] were such that 'credibly based probability' had not replaced suspicion'" (para. 27). The appeal court also upheld the trial court's finding that the vessel was not a dwelling house.

This case involved a charge of exceeding a possession limit arising out of evidence obtained during a roadside search of a motor vehicle. The search was performed pursuant to s. 24 of the Fisheries Act (Saskatchewan), 1994. This section allows for search of a motor vehicle “[w]here due to circumstances, time or location, there could reasonably be expected to be a high incidence of offences . . .”. The issue was whether this section of the Act and/or the subsequent search contravened ss. 8 and 9 of the Charter.

Given the fact that the search provisions do not require reasonable and probable grounds to suspect that an offence has been committed, the court relied upon obiter comments in the decision of Denys v. R. [1995] S.J. No. 341 (Sask. C.A.) and other cases to find the impugned section contrary to the Charter. With respect to justification under s. 24 of the Charter, the court rejected an argument that the expectation of privacy was reduced by virtue of fishing being a regulated activity on the basis that many of the persons stopped were not taking part in the regulated activity. Since the Crown did not call adequate evidence to meet the test set out in R. v. Ladouceur [1990] 1 S.C.R. 1257, the court did not find the infringement to be justified under s. 24. With respect to exclusion of evidence under s. 24(2), the court held that the Fisheries Department had been wilfully blind to the comments of the Saskatchewan Court of appeal in Denys v. R. regarding a very similar provision. Accordingly, the evidence was excluded, as its admission would bring the administration of justice into disrepute.

R. v. Rhyno [2002] N.S.J. No. 170; 2002 NSPC 8 (N.S. Prov. Ct.) (MacDougall Prov. Ct. J.)

This case involved a crab boat that was owned by a group of fishermen who were under suspicion for illegal crab fishing. Although the vessel had not engaged in commercial fishing for some time, it was outfitted for fishing, it was tied up to a dock with crab traps piled upon it, and on the day in question, it had left the dock at 7:00 p.m. in the evening and returned one hour later. Upon the vessel being approached by uniformed fisheries officers, the accused left the boat and refused to produce identification when asked to do so. As a result of his refusal, he was arrested for obstruction.

One of the issues at trial was whether the provisions of the Fisheries Act and regulations regarding inspections applied to “someone not proven to be involved in the fishery but, at most, only on the periphery or with the opportunity to be involved” (para. 17).

In finding the accused guilty of obstruction, the court took the expansive view of fishing from R. v. Newell [1988] N.S.J. NO. 413 to the effect that fishing includes the whole voyage from wharf to wharf. The court said that although there was no evidence that the accused was actually involved in the fishery, the fisheries officers “had reason to suspect the vessel was one which fell within s. 49(1) of the Act justifying the inspection of a “place” and that . . . [the accused], ‘a person found in the place’ would be obliged to provide information as contemplated by s. 49(1.20(B) of the Act” (para26).

This case involved an application under s. 71(4) of the Fisheries Act on behalf of a number of First Nations fishermen to have seized gear returned pending trial on charges of illegal fishing. At issue was whether or not the Crown had to make application under s. 71(4) of the Act if they wished to retain seized gear for more than 90 days. The fishermen argued that such an application was always necessary, but the court held that such an application was only necessary if proceedings were not instituted within 90 days. The Motions Judge accepted the argument of the Crown and held that such an application was only required if proceedings were not commenced within 90 days.

Upon denying an application for certiorari against the decision of the trial judge, the court held that although “it seems there is a failure in the legislation to have the issue of interim possession of important items determined judicially”, in quasi-criminal matters such as Fisheries Act prosecutions there are no interlocutory appeals except in exceptional circumstances.

Upon appeal, the court upheld the decision of the motions judge. In doing so, the court refused to follow the obiter comments of the court in R. v. Hung Van Nguyen (2000) Surrey Registry No. 107078-01 (B.C. Prov. Ct.).

Editor’s Note: With respect to the obiter comments in R. v. Hung Van Ngyen, in a subsequent case the judge in R. v. Hung Van Nguyen also made a decision that was inconsistent with his prior obiter comments. For another case, which also holds that a Crown application is only required if proceedings are not instituted within 90 days, see: R. v. Peter Paul 2001] N.S.J. NSPC 1 (N.S. Prov. Ct. – Batiot C.J. Prov. Ct.) (digested herein).

R. v. Peter Paul [2001] N.S.J. NSPC 1 (N.S. Prov. Ct. – Batiot C.J. Prov. Ct.)

This was an aboriginal rights case where a vessel was seized as a result of a charge under the Fisheries Act. The issue was whether or not the Crown must bring an application under section 71(4) of the Fisheries Act for continued detention of a seized fishing boat within 90 days of the seizure.

Upon reviewing sections 50, 52, 71, and 72 of the Fisheries Act, the court declined to follow the decision of the British Columbia Provincial Court in R. v. Nguyen and relied upon the plain meaning of the statute to find that so long as an information has been laid time stops running and no application for continued detention is necessary.

This case involved a fisheries officer who was inspecting a property under s. 49 of the Fisheries Act to see if logging on the property had any impact on fish habitat. While attempting to question the woman who was the owner of the property in question, her husband, the accused, aggressively placed himself between his wife and the fisheries officer, preventing him from even attempting to communicate with the property owner and ordering him off the property.

One of the issues arising at the summary conviction appeal was whether questioning of the owner of the property at her ranch house, away from the waterway was authorized under the Fisheries Act.

In holding that the search was valid, the appeal court referred to s.49(1.2) of the Act which provides that the owner or person in charge of a place stall (a) give all reasonable assistance and (h) provide the officer with any information he or she may reasonably require.

The second issue was whether or not the conduct of the property owner’s husband amounted to obstruction. In upholding a conviction for obstruction, the summary conviction appeal judge said as follows:

This was not simply saying rude words or unpleasant words. There was a phvsical stance, body language and viewed totally, a course of conduct which was intended to impede and hinder the officer and obstruct him from what he was attempting to do . . . (para. 5)

Aboriginal Rights and Defences – Buying and selling salmon caught under authority of a food fish licence

This case involved charges of buying and selling salmon caught under the authority of a food fishing licence.

This judgment was a ruling on a voire dire concerning the admissibility of documents seized under the authority of two search warrants issued under s. 487 of the Criminal Code.

The court reviewed the affidavits filed in support of the affidavits and concluded that they contained erroneous and unsupported evidence. The court also concluded that there was material non-disclosure. Accordingly, it ruled that the search had violated the Charter. In ruling that the evidence obtained as a result of the violation should be excluded, the court said as follows:

This case involved a large number of charges against a snow crab fisherman who was alleged to have conspired with two dockside observers to land catches of snow crab in excess of his quota.

Amongst other things the case concerned the admissibility of a “fish book” containing a hand written table of dates, names, quantities of fish and values of fish. This fish book was prepared by a clerk at the fish plant, despite the fact that he was instructed by his employer to only record information in a computer. The fish book was first discovered during an off season inspection of the fish plant made pursuant to 49(1) of the Fisheries Act. After the fish book and other documents were observed, the fisheries officers then obtained a warrant pursuant to s. 49.1 of the Act based upon the information obtained during the inspection and seized the fish book. One of the issues at trial was whether or not the initial inspection pursuant to section 49 of the Act was legal.

In holding the “inspection” to be valid, the trial court rejected defence arguments that D.F.O. exceeded its authority, firstly, by inspecting a fish plant which did not hold a fishing licence, and secondly by conducting the inspection after the fishing season had closed. It held that so long as the fisheries officers had not reached a point where they had reasonable and probable grounds to believe an offence had occurred, it was not necessary for them to obtain a warrant under section 49.1 of the Act.

The trial court also rejected defence arguments that the “inspection” violated the Charter. In doing so, it referred to R. v. Fitzpatrick [1995] 4 S.C.R. 154 [link] for the proposition that in a regulated activity such as the fishing industry there is not a high expectation of privacy.

Upon appeal, the court upheld the decision of the trial judge. In doing so, it accepted the trial court’s findings that the fisheries officers had not yet reached a point where they had reasonable and probable grounds to believe an offence had been committed.

With respect to the Charter, it was argued by defence counsel that section 49 of the Fisheries Act must be applied so as to limit its operation to the regulatory context rather than to permit its use for investigative purposes. That is, where an investigation is under way, resort to a regulatory inspection infringes sections 7 and 8 of the Charter.

In a very analytical judgement, the court reviewed these arguments at length with a thorough review of the applicable authorities. In doing so, it followed the R. v. Fitzpatrick line of authorities to conclude that “the requirements of ss. 7 and 8 of the Charter, as developed in the context of criminal law, should be applied more flexibly in this regulatory context” (para. 110). With respect to s. 7 (life liberty and security of person), the court applied the tests set out in R. v. Fitzpatrick and R. v. White to conclude that the inspection and subsequent seizure of the fish book did not offend s. 7.

With respect to section 8 (unreasonable search and seizure), the court concluded that in the circumstances of the case, there was only “the most modest reasonable expectation of privacy” (para. 121). In rejecting the argument that there had been a breach of section 8 of the Charter the court said “I do not accept the proposition that an inspection of business premises in the fisheries context engages the Hunter requirement of prior judicial authorization where the officers are investigating a suspected offence but do not have reasonable and probable grounds to obtain a search warrant” (para. 121).

Editor’s note: See also the digest of this case under “Offences – Misc.” with respect to the application of the principled exception to the hearsay rule.

Offences - Search and Seizure - Illegal Motor vehicle search for Abalone does not offence s. 24(2)

Fisheries officers on a patrol had a suspicion that the accused might have undersize lobster on his vessel but did not have reasonable and probable grounds for believing so. Undersize lobsters were found as a result of a search /inspection of the vessel. The issue was whether the officers searched the vessel under section 49.1 of the Fisheries Act which required a warrant, or whether they inspected the vessel pursuant to section 49 of the Act.

The Summary Conviction Appeal Court reviewed the definitions of "search" and "inspection" and concluded that the officers had conducted an "inspection". Accordingly, it ruled that a search warrant was not required. In making its ruling, the court said as follows:

In this case, the activity (lobster fishing) is permitted only under a license issued pursuant to the Fisheries Act. It is a highly regulated activity. The premises sought to be inspected was a lobster boat. The Lobsters, which were the items sought to be inspected, are kept on the open deck. Fisheries Officer, Sheidow, testified he saw lobsters in the boat before he boarded it. In these circumstances, given the highly regulated nature of the activity sought to be inspected, the nature of the facilities, or premises, and the subject matter being inspected, the respondent had very little expectation of privacy.

The Court of Appeal also noted that the degree of intrusion was minimal and upheld the decision of the Summary Conviction Appeal Court.

Offences - By Licence Holders (s. 78.4)

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 trial 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 (link), the acquittal of the trial court was upheld on the following basis:

Upon further appeal to the British Columbia Court of Appeal, the court focused on the following issues:

(1) To establish a due diligence defence, does the Defendant have to establish the mechanism of the failure; and

(2) Is the corporate vessel owner vicariously liable for the negligence of its vessel operator?

With respect to the first issue, after reviewing the applicable authorities the court concluded that the defence does not have to demonstrate the precise mechanism by which a prohibited act occurred. It only has to demonstrate that it exercised due diligence "to avoid the specific type of occurrence giving rise to the charges against it" (para. 19). In this particular case, the accused was not required to show the mechanism by which the retention of prohibited species occurred. It did, however, need to show that it had in all respects exercised due diligence to prevent the catching and retaining of prohibited species. The court also distinguished the Gulf of Georgia case cited above as a case where the consequences of employee negligence were much more serious.

With respect to the vicarious negligence (the second issue), the court relied upon R. v. Saulte Ste. Marie (City), 1978 2 SCR 1299 to reject the argument that a company is vicariously liable for the acts of its employees unless it can show that the employees exercised due diligence. It did, however, state that if it had been established that sufficient authority had been delegated to the captain so as to constitute him as a guiding or directing mind of the corporation, his specific actions would also have to be scrutinized by the court.

Offences - By Licence Holders and Employers - Liability of Company - Liability of Directors - lobster fishery

In a complicated fact situation involving a company owned fishing vessel that was illegally fishing for Lobster while the sole director was not aboard, based upon the rule in Hodge's case (1838), 168 E.R. 1136 and circumstantial evidence produced by the Crown, the court was not prepared to convict the director for his personal involvement. The court was also not prepared to convict the licence holder on the basis of s. 78.4. It was, however, prepared to convict the corporation under s. 78.3 and the director of the corporation under s. 78.2.

The accused was the holder of a licence allowing a fishing vessel to fish for snow crab in a defined area. The fishing vessel was observed in a area outside the defined fishing area with crab fishing gear hanging over its side. As well, buoys bearing the CFV number of the fishing vessel were found in numerous locations outside the defined fishing area. When pulled, several of the attached traps had tags assigned to the accused.

At trial, the accused called no evidence and argued that the Crown had failed to prove the identity of the accused because there was no evidence that he was on the boat.

Held: Based upon s. 78.4 of the Fisheries Act, and the absence of any evidence from either the accused or the Crown's that the activities of the fishing vessel were carried on without the knowledge or consent of the licence holder, the court convicted.

This was a companion case to R. v. Cox 2003 NLSCTC 56 (digested herein). In addition to the issues raised in the Cox decision, the court also dealt with the issues of whether or not the accused could be found guilty by virtue of s. 78.3 of the Fisheries Act (Offences by Employers) and s. 78.4 of the Act (Offences by licence holders). Given the absence of any evidence that the offence was committed without the knowledge or consent of the licence holder, the court applied R. v. Petten (1995) 129 Nfld. & P.E.I.R. 37 to uphold the trial courts conviction.

Offences - net size - onus of proof of offence against licence holder pursuant to s. 78.4

This case involved the discovery of an illegal gill net with two different identification numbers upon it. The accused, was the corporation who held a licence under one of the two identification numbers. At trial, no evidence was led with respect to the person to whom the second identification number was issued. Upon convicting the accused, the Justice of the Peace indicated that after leading evidence of the two identification numbers attached to the net, the onus then shifted to the accused to offer an explanation. Upon appeal, it was held that no such reverse onus existed and the Crown had failed to establish the offense beyond a reasonable doubt.

Licences – sanctions – s. 7 of Fisheries Act not to be used to impose penalty

This case involved an East Coast snow crab fisherman who allegedly failed to comply with the terms and conditions of his licence by both failing to hail before changing areas and exceeding his quota on three different occasions. Although a prosecution in the courts was commenced, instead of continuing the prosecution, the Department of Fisheries decided to seek a licence sanction from the Minister through his delegate, the Regional Director.

The licence sanction process was initiated by a letter from the Area Manager advising the fisherman that he was forwarding a request to the Regional Director for a licence sanction. After receiving submissions from both the Area Manager and the fisherman, the Regional Director, in his capacity as delegate of the Minister, withheld the fisherman’s licence for the first 3 weeks of the following fishing season and reduced his quota by 50%. In doing so, his letter made it clear that this sanction was a penalty for his failure to comply with the fisherman’s licence conditions. A conservative estimate of this penalty in monetary terms was $82,600, which was much greater than the fine he would have received had a court convicted him.

In upholding the lower level court’s decision to declare the Minister’s sanction invalid, the Federal Court of Appeal said as follows:

"In exercising the power conferred on him by section 7 of the Fisheries Act to issue at his "absolute discretion" a fishing licence, the Minister of Fisheries and Oceans may not do it by attaching to the licence limitations or conditions, the sole purpose of which is to impose sanctions for the applicant’s past behaviour. . . . "It may be that past compliance . . . can be a relevant factor for the Minister’s consideration as an aspect of conservation . . . but s. 7 . . . may not be exercised for the primary purpose of penalizing an applicant . . . That section does not include the power to enforce penalties for offences for which prosecution is otherwise provided under the Act."

Mr. Justice MacKay followed his early decision in R. v. Mathews (digested herein) to hold that the Minister of Fisheries cannot use section 7 of the Fisheries Act to impose licence sanctions. In doing so, he distinguished Comeau Seafoods Ltd. v. Canada (digested herein). He then went on to hold that even if he is wrong, the imposition of a licence sanction which would cost the fisherman approximately $45,000 dollars, when a Provincial Court judge thought a $1,000 fine would be adequate, was "so unreasonable that it was beyond the discretion granted to the Minister".

Offences - Forfeiture

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.

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

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

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

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

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 - Forfeiture where fish caught in contravention of act notwithstanding acquittal - whether or not stay of proceedings is a forfeiture for purpose of s. 72(3)

This case involved approximately 12,000 pounds of sable fish that were seized pursuant to the provisions of the Fisheries Act and sold pending trial. After obtaining a stay of proceedings for failing to provide a trial within a reasonable time, the Crown brought an application for forfeiture of the proceeds of sale of the sable fish under s. 72(3). At the hearing the defence made preliminary objections on the grounds that: (1) a stay of proceedings did not amount to an acquittal for the purpose of s. 72(3); and (2) the improper detention barred the Crown's application.

With respect to the stay, the court ruled that for the purposes or s. 72(3), a stay of proceedings amounted to an acquittal.

With respect to the improper detention, the court ruled that although the proceeds of sale of the fish was held improperly for period of time because the court did not get an continued detention order pursuant to s. 71(4), the improper holding ended when charges were laid. Based upon R. v. MacMillan Bloedel Ltd. , {1998} B.C.J. No. 908 (B.C.S.C.), the court ruled that since the improper holding was cured it was not a bar to the forfeiture proceeding.

This case involved a snow crab fisherman who was convicted of fishing out of his licenced area. In awarding a fine of $4,000, but refusing to order forfeiture of the catch valued at $35,362, the trial court relied upon the following mitigating factors: (1) Although the accused's belief that he was fishing in his area was not reasonable it was honest; and (2) the accused incurred unsubstantiated expenses of approximately $50,000 inclusive of fuel, crew, observer and legal costs. Upon appeal by the Crown, both the summary conviction appeal court and the N.S.C.A. reduced the fine to $2,000, but imposed a forfeiture order. In doing so, the N.S.C.A. held that based upon the unsubstantiated evidence of the $50,000 in expenses claimed to have been incurred, the trial court's failure to give sufficient weight to the principals of deterrence by not imposing forfeiture was unreasonable and therefore could be set aside based upon the test set out in R. v. Shropshire.

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

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

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

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

Offences - Unlawful sale of fish by fish processor - Forfeiture of Monetary Benefits -

Offences - Relief from Forfeiture - Proof of expenses when calculating net monetary benefit

R. v. Perry [2003] N.J. No. 27 (Nfld. and Labrador Prov. Ct.) (Hyslop Prov. Ct. J.)

This case involved a charge against an American crab fisherman of illegal fishing pursuant to s. 4(2) of the Coast Fisheries Protection Act (See the digest of the case under “Offences”). After conviction, the Crown sought a fine of $30,000, forfeiture of two crab traps seized, the proceeds from sale of the crab that was caught ($132,448) and forfeiture of a bond posted for the release of the boat in the amount of $50,000.

On the basis of the above findings, the court declined to order forfeiture of the bond, but did order forfeiture of the traps and proceeds of sale of the catch. It also imposed a fine of $25,000.

Offences - Relief from forfeiture - No need to prove positive inquiry when vessel owned by son of offender

This case involved an aboriginal fisher who, after participating in a test/protest snow crab fishery was convicted of: (1) having on board a crab trap without a valid tag, and (2) fishing for snow crab without a valid licence. Upon conviction, his sentence included a conditional discharge and a partial forfeiture of the proceeds of sale of his catch ($28,599.60 of $38,599.60). Upon a summary conviction sentence appeal by the Crown, the court upheld the sentence. With respect to the partial forfeiture order, the court applied R. v. Mood (1999) 174 N.S.R. (2d) 292 (digested herein) for the proposition that the mandatory forfeiture provision of s. 72(2) of the Fisheries Act only apply when "the offence was in relation to the fish that were seized, and they were an essential element of it" (Para. 33 quoted from Mood para. 16). The partial forfeiture order of the sentencing judge was upheld under s. 72(1) of the Act.

This case involved the poaching of 4,100 abalone weighing 750 pounds with a value of $18,750 at a time when there had been a coast wide moratorium on the harvesting of abalone for approximately eight years. One of the accused plead guilty and was sentenced on a joint submission to a fine of $7,000 and ordered to pay $5,000 compensation and to forfeit his diving gear. Upon conviction of the second accused, the court imposed a fine of $7,000 and granted an order for forfeiture of, amongst other things, a tug and barge valued at $70,000 owned by a company which in turn was owned by the second accused’s father.

Upon appeal, the second accused argued that his penalty offended the principle of parity because when considering the $70,000 value of the tug and barge, it was much higher than that of the co-accused. The Court of Appeal, upheld the forfeiture order for the following reasons:

1. Since the use of the tug and barge was not merely incidental to the commission of the offence, it could be confiscated without regard to the totality of the offence;

2. In this case, forfeiture was appropriate because of the intimate involvement of the barge and tug with the commission of the offence and because this was an “egregious environmental offences against a threatened species” (para 29) which “dealt a staggering blow to the conservation efforts to rehabilitate the industry” (para. 14); and

3. Forfeiture did not offend the principle of parity because the accused did not own the tug and barge.

Editor’s note: In determining whether or not forfeiture ought to be considered as part of the sentence, the court applied a test set out in Thomas, Principles of Sentencing. In the quote cited from Thomas, the text book says, “[t]hese cases may justify the view that where the property is specifically adapted for the commission of the offence, or has no other use to the offender, it may be confiscated without regard to the totality of the other sentence . . .” (para. 26) [emphasis added]. In the peculiar facts of this case, the tug boat had no other use to the offender because he did not own the logging company which owned the boats. However, in the more usual case of a commercial fisherman, the boat would have another use to the offender, namely earning his or her living through commercial fishing.

See also the quote from Thomas where it refers to special hardship being considered by the court and the quote from R. v. Smith, [1978] N.J. No. 10 where it says that it the court can take into consideration forfeiture orders when sentencing.

Although not referred to, this court seems to reject the approach taken by R. v. Gould [1998] N.J. 318 (Nfld. S.C.).

This case involved two divers who were caught poaching 16 lobsters, three of which were short and one of which was a female with eggs. Upon entering guilty pleas, the sentencing judge imposed fines of $1,500 each plus forfeiture of a boat worth $5,000 and other gear worth $4,000 to $5,000.

Upon appeal, the court applied R. v. Gould [1998] N.J. No. 318 to set aside the forfeiture order on the grounds that it was “out of line with others involving similar offences” (para. 41).

The case involved an application under s. 75(1) of the Fisheries Act for return of a boat that had been forfeited pursuant to s. 72(1) of the Act. Although the act provided that the application must be made within 30 days after the forfeiture, the application was not made until 43 days after the forfeiture.

Upon the Crown making a preliminary objection, the court ruled that the application was barred because it was outside the 30-day time period allowed for such applications and because “there is no statutory authority for extending the period of time” (para. 30.).

R. v. Oates [2002] N.J. No.165; 2001 01T 1181 (Nfld. & Labrador S.C.) (Barry J.)

This case involved, amongst other things, a sentence appeal of a charge of exceeding a fisheries quota. It was determined that the gross value of the illegal catch was $30,000 and the net value after deduction of expenses including crew shares was $6,361.79 (before tax). One issue raised during the appeal was whether or not the expenses could be deducted when determining the monetary benefit obtained by the fisherman from his offence for the purpose of a fine under s. 79 of the Fisheries Act. After considering the matter and declining to follow R. v. Reid, [2001] B.C.J. No. 1886 (link), the court allowed a deduction for expenses.

This case involved a Canadian registered ship which was given a provisional registration in Panama without first obtaining a deletion certificate from the Canadian Registrar of Ships. It then fished in the NAFO fishing zone without a licence, which it could do legally if it was a foreign ship, but not as a Canadian ship.

Pending the trial, the ship was seized pursuant to section 51 of the Fisheries Act. During that time, it was also arrested by two claimants in two separate Federal Court admiralty proceedings. One claimant was a bank suing for default under a marine mortgage and the second claim involved a claim to title by some shareholders of the vessel’s owner. Both claimants arrested the vessel. The Crown intervened in one of the Federal Court proceedings and obtained an order that the vessel be released from arrest and sold pending litigation. The stated reason for the Crown’s application was to avoid the heavy costs being incurred by the Crown for the preservation of the vessel. Subsequent to the sale of the vessel, the owner of the vessel was convicted of fishing without a license and sentenced with a term of the sentence providing for forfeiture of $50,000 from the proceeds of sale.

Upon appeal, to the Newfoundland Court of Appeal one of the issues raised was whether or not the sale of the vessel prior to the determination of the criminal proceedings prevented the Crown from claiming forfeiture of the proceeds of sale of the vessel. The court analyzed sections71 & 72 of the Fisheries Act and concluded that the legislation did not authorize the court to dispose of a seized vessel prior to trial and retain the proceeds of sale. The court concluded that by selling the vessel, the Crown had released it from detention which terminated any forfeiture rights the Crown had in the criminal proceeding pursuant to the provisions of the Fisheries Act.

Upon appeal to the Supreme Court of Canada, this decision was reversed. In doing so, the court relied upon the following principles of statutory interpretation to arrive at the following conclusions:

1. Using the grammatical and ordinary meaning of the words in section 72 of the Fisheries Act, the court concluded that an order of forfeiture could include the forfeiture of the proceeds of a fishing vessel.

2. From a review of the legislative history of the Fisheries Act, the court concluded that the 1991 amendments to the Act broadened the scope of the forfeiture provisions beyond that of forfeiture of proceeds of perishables.

3. Looking at the scheme of the Act, the court concluded: (a) section 489.1 of the Criminal Code (restitution of seized property) has no application; (b) a person charged under the Fisheries Act cannot rely upon the presumption of innocence to delay a person with an in rem action from obtaining his remedy and correspondingly, after a person charged under the Fisheries Act has been found guilty and the presumption of innocence is spent, there is nothing in the Fisheries Act that would immunize the proceeds of sale realized pursuant to a civil (presumably in rem) proceeding from forfeiture.

4. Looking at the legislative context, the court concluded that the words “any proceeds” in section 71(1) of the Fisheries Act are not limited to proceeds of perishables.

5. Looking at the legislative context, the court concluded that the bail provisions (s. 71(2) of the Fisheries Act were inconsistent with an Court of Appeal’s interpretation of the Act which concluded that the right to forfeiture was lost upon the vessel the Crown losing physical detention. In doing so the court noted that although the Act does not provide for forfeiture of a security deposit granted as bail, the right to forfeiture upon the posting of security was contractual. The Act should be interpreted so as to “harmonize the interest of the accused, the Crown, the employees and creditors that have an interest in getting productive, income-earning property back into circulation.

6. Looking at the legislative context, the court noted that parallel in rem proceedings were contemplated as demonstrated by section 75 of the Act which allows a person who has an interest in property ordered forfeited by the court to apply for relief from forfeiture. Although this is ordinarily done in a provincial superior court, it is also possible to do by way of in rem action in the Federal Court.

7. Looking at the legislative context, the “provisions of the Federal Court Act and the provisions of the Fisheries Act can and should be read as a consistent, harmonious scheme for the regulation of maritime matters.” For example, if a fishing vessel were seized pursuant to the provisions of the Fisheries Act and the owner was unable to obtain its release by posting a bail, a mortgage holder ought to be able to obtain a court ordered sale of the vessel in admiralty court and have the Crown’s claim to forfeiture dealt with in the same court.

In allowing the Crown to claim forfeiture of the proceeds of sale, the court suggested that it might have held otherwise, if the Crown had instituted proceedings in the Federal Court itself for the sole purpose of an “end run around the limitations in the Fisheries Act”.

Editor’s note: This case is very useful because of its thorough review of the forfeiture provisions of the Fisheries Act. Although it appears to confirm the discretion of the Minister to refuse to accept a security deposit to secure the release of a vessel (para. 48), it only does so in obiter and does not consider whether or not this would be contrary to the Charter (see R. v. “Peonia No. 7” and Jeon Meang Yel (20 March 1986) (Prov. Ct. of Nfld. District of St. John’s) (Wicks, L.W., P.C.J.). It deals with the issue of whether or not the seizure provisions of the Criminal Code apply and it also suggests that parties releasing vessels on bail should include a contractual provision governing what happens in the event of a conviction. With respect to the priority between a Crown claim to forfeiture and a mortgage, see an early proceeding between these parties at 2001 FCT 1034 which at the time of writing, was under appeal.

This case involved an appeal from a sentence for fishing for abalone without a licence, which imposed forfeiture of a tug and barge used in the commission of the offence in addition to a fine. Although the appellant was the general manager of the Company that owned the tug and barge, it was his father who was the sole beneficiary of the Company’s property. As a consequence, the appeal court ruled it had no jurisdiction to set aside the forfeiture. The proper procedure was for the owner of the tug and barge to bring a separate proceeding under section 75(1) of the Fisheries Act.

This was a sentence appeal involving an accused with a lengthy record who was convicted for illegal fishing of Lobster. Amongst other things, the court upheld an order for forfeiture of a dory, outboard motor and other miscellaneous items with an estimated value of $2,500.

This case involved an appeal from a sentence imposed for fishing cod during a closed time. Upon appeal, the court upheld a crown appeal of an $800 fine as too low and set aside a forfeiture of boat and motor belonging to one of the accuseds. In doing so, Dymond J. reviewed some of the prior authorities and said as follows:

Fines are such that they range in maximums that should deter people from fishing out of season. The forfeiture should therefore be looked upon as additional punishment for the more serious offences under the Fisheries Act. Otherwise the wording “in addition to any punishment imposed”, would make little sense if forfeiture was to go in every case. The fact that forfeiture is made discretionary means it should not always be granted because the Crown requests forfeiture.

This case involved two accuseds, who were convicted of taking an illegal bycatch of cod and other species while fishing for skate.

The court considered section 51(b) of the Fisheries Act and exercised its discretion to not order forfeiture of intermixed fish. In exercising this discretion it considered, amongst other things, the following:

Offences – Sentencing – Forfeiture of fish under s. 72(2) of the Fisheries Act.

This case involved a fisherman convicted under section 13(1) (c) of the Atlantic Fishing Regulations of permitting his crew to haul previously set lobster traps without him (the licence holder) being aboard the vessel. Upon sentencing, the trial judge refused to apply the mandatory forfeiture provisions of section 72(1) of the Fisheries Act to the proceeds of sale of the lobster catch. Upon a summary conviction appeal, the Supreme Court overturned the trial decision and ordered forfeiture. Upon further appeal to the Nova Scotia Court of Appeal, the decision of the trial judge was restored.

Editor’s note (14 March 05): This case has been applied in: R. v. Paul [2003] N.S.J. No. 295, 2003 NSSC 164; R. v. Rideout 2005 NSSC 4. It was also applied by Seidemann Prov. Ct. Judge in the unreported decision of R. Haines in 2 Feb. 04 (Prince Rupert Registry). No transcript of this case has been made.

This was a sentencing case involving two brothers who pleaded guilty of unlawful possession of salmon. Both brothers were fined $1,000 dollars. In the court also ordered the forfeiture of the boat owned by one brother with a value of $12,000 dollars.

Upon appeal, the court set aside the forfeiture of the vessel and substituted an additional fine of $500 dollars on the boat owner. His reasons were as follows:

1. The discretionary power to forfeit given to the court by section 72.1 of the Fisheries Act should be exercised with regard to the general principles of sentencing set out in section 718 of the Criminal Code;.

2. The reference to "abuse of a position of trust" in section 718.2(a)(iii) of the Criminal Code was not meant to apply to a fisher misusing a commercial fishing licence;

3. By focusing too much on the issue of deterrence, the judge overlooked the principle that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The judge also overlooked the requirement of consistency.

4. Forfeiture without reference to other principles can also lead to inequities resulting from offenders using valuable equipment receiving a larger penalty than others.

This case involved a fisher charged with recreational fishing for ground fish during a closed time. He was caught with 12 fish, was a first time offender, was not commercially trafficking in cod and plead guilty the first time the matter was brought before the court.

The sentencing judge imposed a fine of $500 dollars and ordered forfeiture of his boat and engine which was worth $10,000 dollars. In imposing the sentence, he referred to snow mobilers who lose their snow mobiles when convicted of illegal ice fishing. He said "you are no different from anybody else"

On appeal, the appeal court referred to the fact that section 72 (2) of the Act is discretionary. Mr. Justice Easton said as follows:

If the court feels after it has settled on an appropriate punishment that additional measures should in this circumstances be employed, then forfeiture may be ordered. It is important, in my view, to recognize, however, that forfeiture under the Act is always in addition to previously decided upon punishment, whatever form it may take.

Given the fact that the sentencing judge indicated that all persons are to be treated alike, and gave no reasons for the forfeiture, the court assumed that he failed to exercise his discretion. Accordingly, it set aside the forfeiture and increased the fine from $500 dollars to $1,000 dollars.

This case contains a useful review of the principles of sentencing and the factors to be considered by an appeal court when reviewing a sentencing decision.

Offences - Sentencing - Relief from forfeiture of property owned by innocent third parties -

This case involved an application for relief from forfeiture pursuant to section 75 (4) of the Fisheries Act which provides as follows:

75. (4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,

(a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and

(b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lien holder, that he exercised such care with respect to the mortgagor or the lien giver, the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.

This case involved a Father and son who lived in an area where illegal ice fishing was very prevalent. A Father regularly borrowed his son's snow mobile for the purpose of working on his son's log home, but had a blanket permission to use the machine when he wished to. He took the machine on the morning he was charged without asking and before his son was out of bed. He gave evidence that he did not ask his son for permission to use the snow mobile for illegal fishing because he knew his son would refuse such permission.

The decision examined two lines of authority as to the duty of a bailee of goods under provisions such as section 75(4) of the Fisheries Act. These two lines were summarized by Cameron J.A. in his dissent as follows:

the one [line of authorities], based on the decision of Fauteux J. in Deputy Minister of National Revenue v. Industrial Acceptance Corporation Limited, (1958), 15 D.L.R. (2d) 369 which has been generally interpreted to require, in every case, that the bailor make some positive and specific inquiry as to whether there are reasons to suspect likelihood of activity contrary to the Act with the circumstances determining the nature of the inquiry; and the other, illustrated by the decisions of Justice Green in Doyle v. Minister of National Revenue (1993), 106 Nfld & P.E.I.R. 53 and Coombs v. Minister of National Revenue (1992), 102 Nfld & P.E.I.R. 23, which hold that the circumstances dictate not the nature of the inquiry but whether such an inquiry need be made.

All of the members of the court chose the second line of authorities to the effect that the circumstances dictate whether or not a positive enquiry is required. The Majority decision of Green J.A. concurred in by Marshall J.A. found on the facts of the case that a positive enquiry was not required. Cameron J.A. in dissent, disagreed and would have imposed a positive duty to warn against illegal use.

With respect to the scope of the duty, Cameron J. suggested that in the absence of a prior history of fishing contrary to legislation, obtaining an "undertaking by an ostensibly honest bailee would meet the test". However, if the bailee had a history of previous convictions, such an undertaking might merely be "paying lip service to form."

Offences - Prohibitions from Fishing

The accused was a commercial lobster fisherman who was caught hauling 14 unmarked lobster pots intermingled with his tagged pots. He plead guilty and a joint submission was made requesting:

In sentencing the accused, the trial court imposed items 1 - 3 above, but did not impose a prohibition from fishing. Upon appeal, the appeal court reviewed the law with respect to joint submission of counsel and imposed a fishing prohibition based upon the decisions of R. v. Oldford (digested herein) and R. v. Cluet (2002), 217 Nfld. & P.E.I.R. 87 (NLTD).

R. v. Oldford [2005] N.J. No. 60, 2005 NLTD 38 (Nfld. and Lab. S.C.) (Handrigan J.)

This case involved a commercial lobster fish harvester and his son who plead guilty to catching five lobster for personal consumption (two of which were undersize) five days before the lobster season was scheduled to open. At the initial sentence hearing in Provincial Court, the court imposed fines of $2,500 and $1,100 for the father and son respectively and ordered forfeiture of some of the smaller items of fishing gear. In addition it relied upon R. v. Cluett (2002) 217 Nfld. & P.I.I.R. 87 (N.F.T.D.) and R. v. Morreau [1996] B.C.J. No. 1584 (B.C.S.C.) to prohibited the commercial lobster fish harvester from holding a commercial lobster fishing licence for following fishing season

Upon appeal, after a thorough review of the principals of sentencing as they apply to fisheries offences, the court reduced the fishing prohibitions from one year to the first five days of the lobster season on the grounds that a one year suspension was unreasonable and excessive.

The accused was a commercial lobster fisherman who was caught hauling 14 unmarked lobster pots intermingled with his tagged pots. He plead guilty and a joint submission was made requesting:

Offences - Officially Induced Error

This case involved charges against a large number of seal harvesters for having sold "blueback seal pelts" contrary to the Marine Mammal Regulations. It is related to the case of R. v. Shiner, [2008] N.J. NO. 10.

With respect to the defence of mistake of fact, the mistake alleged was a mistaken belief that the law would not be enforced. The court ruled that this does not qualify as a mistake of fact.

With respect to the defence of officially induced error, the court followed R. v. Shiner to hold that the failure of DFO to previously enforce the law was not sufficient to ground a defence of officially induced error.

With respect to the defence of entrapment, the court ruled that DFO's conduct in (a) advising harvesters where hooded seals could be located (b) not previously enforcing the law (c) indicating that blueback seals could be lawfully killed (the law prohibited selling) did not ground a defence of entrapment.

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).

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

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.

This case involved a master and vessel owner who were charged with exceeding the amount of catch provided by their halibut quota after they failed to properly process the papers necessary for the transfer of a second quota to their vessel. The summary conviction appeal court upheld the conviction imposed by the trial court after rejecting a defence based upon both officially induced error and due diligence. With respect to the defence of officially induced error, the court rejected the defence, because it was not a situation where an official told the accused that the prohibited course of action was allowed.

Editors Note: For a similar case, see R. v. Gant (22 July 1988) No. 13192 (B.C. Co. Ct.)

Offences - Miscellaneous

Offences - Misc. - Possession of V-notched Lobster - Ultra Virus - Unconstitutionally vague

This case involved a charge of failing to comply with a licence condition requiring fish harvesters to return to the water any lobster that have previously been marked with a V notch so as to show that they are capable of spawning. At a pre-trial application, the licence conditions were challenged as (1) being ultra virus and (2) being so broad and vague as to violate the principals of fundamental justice as guaranteed by s. 7 of the Charter.

In rejecting the first argument the Court noted that since s. 22(1)(b) of the Fisheries Act allows licence conditions to restrict the gender of fish taking of fish by gender, "it follows logically that the Minister has the legal authority to prohibit the taking of one fifth of those female lobster . . ." (para. 49).

In rejecting the second argument, the court applied the gross disproportionality test from R. v. Clay, 2003 SCC 75 to find that:

Offences - Misc. - unmarked gear - definition of "Fishing Gear" - amendment of Information at trial

This case involved a accused charged with "[o]n or about September 19, 2006 . . . [d]id set unmarked fishing gear . . .". At trial, the Trial Judge refused an application under s. 601(3) of the Criminal Code to amend the Information to insert the words "operate or leave unattended" after the word "set". He did so on the grounds that granting the amendment would irreparably prejudice the accused who would have cross examined differently had he known operation of the fishing gear was at issue. As a result, the Court acquitted on the basis that the Crown failed to prove that the net had been "set" within the limitation period. The trial judge also acquitted on the grounds that the nets at issue were not "fishing gear" with the meaning of the s. 27 of the Fishery (General) Regulations.

Upon summary conviction appeal, all of the above described issues were raised as grounds of appeal.

With respect to the amendment issue, the Summary Conviction Appeal Court found that the applicable section of the Criminal Cord was s. 601(2) (amendments to conform to evidence) rather than s. 601(3) (cure a defect). Since s. 601 (2) was a discretionary rule, it attracted a more deferential standard of review than a decision under s. 601(3). After applying the palpable and overriding error standard, the Appeal Court refused to overturn the Trial Court's finding of irreparable prejudice.

With respect to the limitation period issue, the Court applied R. v. West Fraser Mills Ltd., (1994), 13 C.E.L.R. (N.S.) 1 (B.C.C.A.) to hold that under s. 82 of the Fisheries Act, in the absence of a certificate from the Minister of Fisheries stating the date when he or she became aware of the offence, the two year limitation period starts to run as of the date of the offence. Accordingly, since there was no certificate from the Minister entered into evidence, the Appeal Court upheld the Trial Court finding that the Crown had failed to prove the gear was set within the two year limitation period.

With respect to definition of "fishing gear", after reviewing the French text of the Regulations, the court concluded that the term "fishing gear" included fishing nets. However, given the finding on the amendment issue and limitation period issue the acquittal was not overturned.

This case involved charges of illegal fishing for snow crab pursuant to Aboriginal Communal Fishing Regulations. When defence council discovered that the Band Council of the First Nation that that issued the Communal Fishing licences had discussed the case with several Government officials, including enforcement officers, he sought production of any reports and/or e-mails resulting from that meeting.

After reviewing the applicable jurisprudence the court held that since the Crown was unaware of any further information being in existence, this was a situation where the onus was on the defence prove that "there is in existence further material that is relevant" (para. 21). With respect to the existence of evidence, the court ruled that he accused had failed to establish the existence of any such evidence. With respect to relevance, the court held that even if documentation existed, it would not be relevant because the discussions at the meeting related to (a) what was required of the Band to prevent similar offences occurring in the future, and (b) the impact of the seizure of fish seized from the accused on the Band's seasonal fish quota.

Offences - Misc. - Admissibility of statements made to Fisheries Officers during Investigation

On the basis of this evidence, the court ruled that the Crown had not satisfied the onus of establishing that the statements were voluntary.

Offences - Misc. - Availability of prohibition with certiorari in aid to enjoin Provincial Court from proceeding to trial against Accused Master of fishing vessel in absence of accused

This case involved charges against the Master of a foreign fishing vessel under the Coastal Waters Protection Act. After several trial adjournments, the Provincial Court refused an adjournment based upon the alleged poor health of the accused in part because the medical report in support of the application was "scant at best" and given the numerous prior adjournments and the passing of time it was in the public interest to have the trial proceed. Since appeals of interlocutory orders are not normally allowed in criminal proceedings, the accused brought an application for prohibition and certiorari in aid, which was denied by the Trial Division court. Upon further appeal, with one judge dissenting, the Appeal Division court upheld the Trial Division judgement and refused the application for review. The reasons for doing so included: (1) the fact that this was a regulatory offence rather than a criminal offence where the consequences of a conviction for the accused were not as far reaching; (2) since the fishing vessel was continuing to fish in the area, there would presumably be other crew members available who could testify; and (3) "undoubtedly there are various data recordings (notably GPS) that modern vessels maintain" (para. 17).

The dissenting judge disagreed that regulatory offences should be treated differently and suggested that if Parliament intended such proceedings to proceed in rem (against the ship itself), it would have provided for such a proceeding within the legislation. (para. 41).

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

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

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

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 - Misc. - Failure to Obtain a licence to approach seal fishers for the Purpose of taking Video and expressing opposition

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

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

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.

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:

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

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

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

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

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

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

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

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

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

Offences - By Licence Holders and Employers - Liability of Company - Liability of Directors - lobster fishery

Offences - s. 79 Payment of additional Fine equal to monetary benefit - applies to gross benefit

Offences – Misc. – Protest Fishery or Pilot Sales – No Racial Discrimination

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

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

Offences - Misc. - Failing to comply with terms of licence - Proof of validity of licence - Failure to prove fishing in closed area

R. v. V.F. Pacific Offshore Fisheries Ltd. and Frank Gordon Melan 6 January 2005 Unreported Powell River Prov. Ct. file no. 12220C2

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

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

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

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

Offences - Misc. - Judicial review of decision of Provincial court judge for breaching rules of natural justice

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

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

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

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

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

Offences - Misc. - Aboriginal Rights and Defences- Failure of Crown at trial to prove averment in Information that fishing in non-tidal waters - No right to amend information during appeal

Offences - Misc. - Possession of Lobster - Failure to establish circumstantial evidence

Offences - Misc. - Fishing in closed area - Discrepancies between GPS co-ordinates and Loran co-ordinates create reasonable doubt

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

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

Offences Misc. - Variation orders - Publication in one regional paper with no proclamation date not reasonable notice

Offences - Due Diligence - Proof of due diligence not required until after Crown proves proper notice of variation order

Offences Misc. - Stay for unreasonable delay and failure to comply with disclosure order of privileged documents overturned on appeal

Offences - Misc. - Unlawfully selling of aboriginal food fish - definition of "sell"

Aboriginal Rights and Defences - Unlawfully selling of aboriginal food fish - definition of "sell"

Offences - Misc. - Possession (def'n) - Whether fish (filleted cod) in condition where its species readily identified

Offences - Misc. - Unlawfully selling of aboriginal food fish - definition of "sell"

Aboriginal Rights and Defences - Unlawfully selling of aboriginal food fish - definition of "sell"

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

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

R. v. Rice [2003] N.J. No. 247 (Nfld. & Labrador Prov. Ct.) (Flynn Prov. Ct. J.)

This case involved a charge under s. 63(1) of the Fisheries Act of making a “false or misleading statement” when estimating the amount of crab caught for the purpose filling out fishing logs. After landing the crab and making deductions for ice, water and barnacles, the landed weight was 37,238 lbs while the estimated weight was 31,348 lbs. In deciding whether or not the captain of the vessel had made a false estimate, the court followed R. v. Kavanagh [2002] N.J. No. 124 to define an estimate as “using one’s best skills and talents . . . It is broad enough to allow the influence of various factors that could effect the estimate, such as catch size, excessive use of ice if traveling long distances, and factors similar in nature. And, it is of sufficient particularity that it does not render section 63 meaningless by allowing any guess to be included in the term ‘estimate’” (para. 14). Notwithstanding some evidence that the crab trays had been overfilled, the court acquitted based upon evidence that the captain had based his estimate upon an average weight of 52 lbs per tray which was two pounds higher than the industry average of 50 lbs per tray.

This case involved charges of both fishing in a closed area and possession of illegal fish against three members of the Cheam First Nation. At the end of the Crown’s case the defence brought a no evidence motion. In dismissing the no evidence motion, the court applied the broad definition of fishing contained in The Ship “Frederick Gerring Jr. v. Canada (1897) 27 S.C.R. 271 as will as the definition of “possession” contained in section 4(3) of the Criminal Code. It also discussed the applicability of s. 21(1) of the Criminal Code (aiding and abetting).

Offences – Misc. - Fishing Unregistered Vessel – Def’n of “fishing – Interpret of statutes

This was a summary conviction appeal by the Crown of an acquittal from a charge of fishing with an unregistered vessel. The unregistered vessel was a large scow that was being towed by a smaller registered scow for the purpose of attending a trap net set in the Miramichi River. Upon reaching the net, the larger scow was detached and each scow went along either side of the net, presumably to remove the fish from the net. The fish were then transported back to the dock in the larger scow being towed by the smaller scow. At issue, was the question of whether or not the large scow was a vessel “used in fishing” pursuant to s. 4(1)(c) of the Maritime Provinces Fisheries Regulations. After applying the definition of fishing set out in The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen (1897) 27 S.C.R. 271 and reviewing the principles of statutory interpretation, the court found that the large scow was used for fishing and imposed a verdict of guilty.

This case involved a protest fishery against the Pilot Fish Sales component of the Aboriginal Fishing Strategy. The Pilot Fish Sales initiative was created in 1995 by granting licences to the Musqueam, Burrard and Tsawwassen Bands to catch and sell food fish caught in area “E” of the Fraser River. This initiative was justified by D.F.O. for several reasons, including:

All of the accused fishers admitted to fishing during a closed time and defended the case primarily on the ground that the Pilot Fish Sales initiative contravened s. 15 of the Constitution Act by discriminating against the Area “E” fisherman who could not participate in the Pilot Fish Sales initiative.

After a comprehensive review of the legal history and context, the legislative scheme, the applicable Charter jurisprudence and defence evidence of discrimination, the court applied the test set out in Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497 to conclude that:

[T]he pilot sales fishery draws a distinction and defines two groups on the basis of whether or not individuals have a bloodline connection to the Musqueam, Burrard or Tsawwassen Bands. This is analogous to a racial distinction. The group without the bloodline connection is subjected to differential treatment by having a benefit withheld - their right to participate as equals in the public commercial fishery. This has the effect of promoting the view that these individuals are less capable, less worthy of recognition, and less valuable as members of Canadian society. It also promotes the view that they are not as equally deserving of concern, respect and consideration as the members of the three bands. (para. 203)

With respect to justification under s. 1 of the Constitution Act, the court found that D.F.O. failed to establish minimal impairment because the government buy-back program would have been a less drastic method of increasing aboriginal participation in the fishery.

Since there was a breach of s. 15 of the Constitution Act that could not be justified under s. 1, a judicial stay was imposed on the prosecution.

Postscript 30 Nov. 04: This case was overturned on appeal 2004 BCSC 1503 and leave for appeal has been granted to a 5 member panel of the BCCA.

This was a companion case to R. v. Cox 2003 NLSCTC 56 (digested herein). In addition to the issues raised in R. v. Cox, this summary conviction appeal also raised the issue of who has the onus of proof regarding the question of whether or not the licensing official was properly authorized to issue licence conditions on behalf of the Minister of Fisheries. At trial, the court ruled that onus of proof lay on the Crown and acquitted on the grounds that the Crown had failed in meeting that onus. Upon appeal, the court applied a “presumption of regularity” set aside the acquittal.

Offences – Misc. – Protest Fishery – Absolute Discharge

R. v. Anderson et al. 2003 BCPC 0217 (Saunderson, B., Prov. Ct. Judge)

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

The result of what some might describe as the DFO's policy of political correctness, but what I choose to call a lack of courage to carry out its mandate as defined by our highest court, is the loss of its moral authority. The issue here is whether acts of civil disobedience should be punished when the civil authority, through its own policies, action and inaction, has lost the right to demand the respect of the public. This is not a matter requiring proof of a direct causal link between the Aboriginal Fishing Strategy and the fishing closure in question. Nor is it a matter of people who fish illegally avoiding punishment if they can show, after the fact, that the DFO could have opened the fishery without harm to the fish stocks - such is not a proper decision for the court. At the end of the day, it comes down to a matter of fairness and the perception of fairness. Unquestionably on the facts of this case, the DFO has not acted in an even-handed way toward all commercial sockeye fishermen. It cannot now be heard to seek the punishment of these accused men. Nor would the public interest be served by doing so. Indeed, the administration of justice would be brought into disrepute by convicting the defendants, as that would make the court complicit with the DFO in benefiting Indians over others, and entitle the public to view the court as the handmaiden of the Minister of Fisheries. On the principles set out in the case of R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.) and R. v. Bigg (unreported), January 7, 1994, (B.C.P.C., North Vancouver Registry no. 24993), I am satisfied that the defendants are entitled to absolute discharges, and there will be orders accordingly. (para. 13)

Editors Note: Unless an issue regarding forfeiture arises, I do not ordinarily digest sentencing cases. I made an exception in this case because of the notoriety of the case. The Crown has appealed this decision.

Offences – Misc. – Presumption of Regularity

R. v. Rideout [2003] N.J. No. 100, 2003 NLSCTD 58

Offences – Misc. – Application for State Funded Counsel

Aborigal – Treaty Rights – Marshal Defence – Application for State Funded Counsel

R. v. Peter Paul [2002] N.S.J. No. 384; 2002 NSPC 25 (N.S. Prov. Ct.) (Gibson, A.C.J. Prov. Ct.)

This case involved illegal fishing charges against two First Nations defendants who wished to assert a defence based upon a Marshal type treaty right. Upon reviewing all of the facts, the court distinguished R. v. MacDonald [2001] N.S.J. No. 368 (N.S.C.A.) (digested herein) and granted state funded assistance on the basis of the test set out in R. v. Rowbotham (1998) 41 C.C.C. (3d) 1 (Ont. C.A.).

Offences – Misc. – Aboriginal defence - Delay

R. v. George [2002] B.C. J. No. 1313; 2002 BCPC 207 (B.C. Prov. Ct.) (Brecknel (Prov. Ct. J.)

This case involved a charge against a First Nations defendant of offering to sell fish that was not caught under the authority of a fishing licence. At the commencement of the trial, the defence made an application for a judicial stay on the grounds that, “[t]hese delays have caused our clients, one of whom is an elder, considerable expense both in legal fees resulting in attending the extra various pre-trial hearings, and emotional hardship in having to wait almost 21 months from the time of the alleged offence to the day of trial” (para. 20). The court applied the test set out in R. v. Morin [1992] 1 S.C.R. 771 and found a prima facie case of delay. However, upon going to the second stage of balancing the defence need for a speedy trial against societies interest in bringing a accused person to trial, the stay was rejected on the grounds that no serious prejudice had been established. With respect to prejudice, the court said:

No evidence was offered of ongoing stress or damage to reputation resulted from the pending trial;

As discussed in R. v. Marin [2000] B.C.J. No. 1515 at para. 19, there was no evidence of significant legal fees linked to the delays or business statements showing a decline in revenue, or doctor’s reports outlining symptoms of stress or anxiety.

Offences - Misc. - Constitution – Division of Powers

R. v. Ward 2002 SCC 17 (S.C.C.)

This case involved a fisherman who was charged under section 27 of the Marine Mammals Regulatons, SOR 56/93, passed pursuant to the Fisheries Act. This regulation prohibited the sale of, amongst other things, “blueback” seals, which are young hooded seals and whitecoats, which are young harp seals. The evidence lead at trial was that public opinion opposed to the killing of seal pups was detrimental to the market for both seal products and other Canadian seafood products such as British Columbia canned salmon. Since it is very difficult to distinguish between mature and immature harp seals while hunting, D.F.O. responded to this problem by enacting section 27 of the Marine Mammals Regulations, which made it an offence to sell immature seals. This case involved a challenge to the constitutional validity of this regulation.

The issue in this case was whether the impugned regulation fell under federal jurisdiction over “Sea Coast and Inland Fisheries” under section 91(12) of the Constitution Act or whether it fell under provincial jurisdiction over “Property and Civil Rights’ under section 92(13) of the Constitution Act?

At trial, the court relied in part upon Re Minister of Fisheries and Oceans and Gulf Trollers (1987), 32 D.L.R. (4th) 737 (F.C.A.) to uphold the legislation on the grounds that the federal fisheries power extended beyond conservation to more general socio-economic goals.

The Majority of the Newfoundland Court of Appeal reversed the trial judgement and held the regulation invalid. They held that the fisheries power was confined to issues of conservation, and legislation enacted for socio-economic reasons was too broad a description for division of power purposes. It was the view of the dissenting Judge that the pith and substance of the regulation was not to control the sale of seal pelts for its own sake, but to discourage the commercial taking of the seals.

Upon further appeal to the Supreme Court of Canada, the court allowed the appeal and upheld the regulation as valid. In doing so, it applied the two staged pith and substance test: first, what is the essential character of the law? Second, does that character relate to an enumerated head of power? In looking at the essential character of the law, the court embarked on another two stage test: first, what is the purpose and second, what is the legal effect of the regulation. In determining the purpose of the regulation, the court relied upon the trial judge’s finding that the purpose of the regulation was to control the killing of the blue backs and whitecoats by prohibiting their sale, thus making it pointless to harvest them. This finding was re-enforced by the fact that the Fisheries Act gives power to make regulations not only for the conservation and protection of the fisheries, but also for the management and control of the fisheries.

With respect to the legal effect of the regulation, the court rejected an argument that because the regulation prohibited the sale of pelts, it must in pith and substance be concerned with the regulation of sale. This argument confused the purpose of the regulation with the means chosen to carry it out.

With respect to the issue of whether the pith and substance of the regulation falls within the federal fisheries power, the court rejected the theory espoused by the Newfoundland Court of Appeal that federal fisheries power only extends to conservation. It also rejected the argument that it only extends to the management of the fisheries resource to the point of sale. In doing so, it cited and number of decisions, including the Gulf Trollers decision, and said as follows:

These cases put beyond doubt that the fisheries power includes not only conservation and protection, but also the general "regulation" of the fisheries, including their management and control. They recognize that "fisheries" under s. 91(12) of the Constitution Act, 1867 refers to the fisheries as a resource; "a source of national or provincial wealth" (Robertson, supra, at p. 121); "a common property resource" to be managed for the good of all Canadians (Comeau's Sea Foods, supra, at para. 37). The fisheries resource includes the animals that inhabit the seas. But it also embraces commercial and economic interests, aboriginal rights and interests, and the public interest in sport and recreation. (para. 41).

Offences – Misc. – Collection of Brood Stock for Abalone without Permission

R. v. Johnstone 2002 BCPC 111 (B.C. Prov. Ct.) (Saunderson, Prov. Ct. J.)

This case involved a new abalone aquaculture project arising out of a collaborative agreement to be entered into with D.F.O. While the final form of agreement was still being negotiated, an assistant deputy minister issued a letter indicating it would “allow for a small number of brood stocks to be collected pending the signing of a collaborative agreement . . .” (para. 7). Despite a subsequent letter from the local D.F.O. office which was somewhat contradictory to the letter issued by the assistant deputy minister, the accused proceeded to harvest some brood stock and was eventually charged for fishing without a licence.

At trial, the issue was whether or not the accused had sufficient permission from D.F.O. to collect the brood stock.

Upon reviewing all of the evidence, the court acquitted the accused on the grounds that he had sufficient permission.

Offences – Misc. – Proof of Terms and Conditions

R. v. Edwards 2002 BCSC 430 (B.C.S.C.) (Halfyard J.)

This was a summary conviction appeal of a conviction for failing to comply with the terms and conditions of a fishing licence (taking rockfish without a quota amendment).

At issue was whether or not the Crown proved that the set of licence conditions was physically attached to the fishing licence.

Although a certified copy of the licence was entered at trial, no employee from the D.F.O. licence division was called as a witness.

In overturning the conviction, the appeal court rejecting the finding of the trial judge that the attachment of the terms and conditions had been proved. In doing so, it said that the court placed much too much weight on the accused’s compliance with the terms and conditions as evidence that they were issued to him. The court also held that very little weight should have been given to testimony from fisheries officers as to the general practices of the employees of the D.F.O. licence division.

In arriving at its decision the court distinguished R. v Fitzpatrick [1995] 4 S.C.R. 154 as a case where the licence conditions referred to obligations which were set out independently in separate regulations. The court also conceded that under some circumstances, such as when the terms and conditions are found aboard the vessel, the Crown might not have to actually prove the licence conditions were attached at the time the licence was issued.

Editor’s Note: For another case involving proof the terms and conditions of a licence see R. v. Morgan [2002] N.J. No. 15 (Nfld. and Labrador Prov. Ct. ) digested herein.

Offences – Misc. – Obstruction

R. v. Rhyno [2002] N.S.J. No. 170; 2002 NSPC 8 (N.S. Prov. Ct.) (MacDougall Prov. Ct. J.)

Offences – Misc. – Fishing on Continental Shelf – Remedy of Prohibition

R. v. Perry [2002] N.J. No. 97 (Nfld. S.C.) (Hall J.)

This case involved the Captain of a U.S. flagged fishing vessel who was charged under s. 4(2) of the Coastal Fisheries Protection Act with illegally fishing on a portion of the continental shelf beyond the limits of Canadian fisheries waters. On a pre-trial application, the fisherman argued that the Crown could not rely upon vague and uncertain statutory provisions to establish the jurisdiction of the court.

The main issue dealt with by the court in responding to this application was whether the prerogative remedy of prohibition ought to be granted at the pre-trial stage of the litigation when a right of appeal would ultimately exist. After reviewing two lines of authorities, the court denied the application. In doing so, it adopted the following quote from R. v. Duvivier (1991), 64 C.C.C. (3d) 20 (Ont. C.a.):

“The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process.”(para. 26)

Offences – Misc. – Admissibility of Fishing Licence and Conditions

R. v. Morgan [2002] N.J. No. 15 (Nfld & Labrador P.C.) (Flynn Prov. Ct. J.)

This case involved a charge of violating a condition of a fishing licence, namely failing to have a dockside observer supervise the unloading of a crab vessel. One issue which arose at trial was the admissibility of a computer generated replication of the fisherman’s fishing licence along with the conditions and schedules attached thereto. In allowing the licence and related documents to be admitted, the court did a comprehensive review of the applicable sections of the Canada Evidence Act as set out below.

Section 24 of the C.E.A. –Certified Copies of Official or Public Documents

The court ruled that the licence documents were not “official documents” because they were made by public servants in the ordinary course of business and did not have a special status necessitating that they be preserved and stored for some specialized usage.

The court ruled that to establish that the licence documents were “public documents”, the Crown must establish the following:

1. The Record must have been made by a public official;

2. In the discharge of a distinct public function or obligation;

3. With a view of a permanent record; and

4. The document must be accessible to the Public (a new requirement not part of the Law of England).

Upon applying the test, the Court found that the last two requirements had not been established by the Crown. In addition, the Court found that there was no provision allowing any of the evidence to be established by affidavit. Accordingly it ruled there was no admissible evidentiary foundation for admitting the licence documents as “public documents” under s. 24.

S. 30, 31.1 & 31. 2of the C.E.A. – Record made in the Usual and Ordinary Course of Business

Upon reviewing s. 30 of the C.E.A., the Court ruled that the licence documents fell within the definition of “record” in s. 30(12) of the Act. It also relied upon R. v. Parker (1984), 16 C.C.C. (3d) 478 to rule that affidavit evidence could be used to establish that the record was prepared in the usual and ordinary course of business. However, since the licence documents tendered in courts were not original documents, the court had to go on and determine whether a computer generated copy could be received in evidence. With respect to s. 31.1, the Court relied upon both the verbal evidence of one witness and observations of the documents themselves to conclude that they were “what they are purported to be”. With respect to s. 31.2 (Best evidence rule), the court was also satisfied that affidavit evidence confirmed: (1) the integrity of the computer system and (2) the printout had been manifestly or consistently acted on, relied on or sused as a record of the information recorded or stored in the print out.

Since the documents satisfied the best evidence type requirements set out in ss. 31.1 and 31.2, and since they were admissible under the ordinary course of business exception under s. 30 of the Act, the court admitted the licence documents.

Alternatively, the Court also ruled that so long as the licence documents were admissible under s. 30, they also would have been admissible under s. 30 (3) of the Act which provides for the use of copies when it is not reasonable or practical to produce the original.

S. 25 C.E.A. – Copy of Public Document

Without reasons, the court ruled that this section was not applicable.

S. 26 C.E.A. – Books Kept in Offices Under Gov’t of Canada.

Without reasons, the court ruled that this section was not applicable.

Offences – Misc. – Transporting Fish Without a Licence – Def’n of “fishing”

R. v. Boutcher 2001 NFCA 33 (Nfld. C.A.)

This case involved a cod fisherman who after his quota had been exhausted, used a fishing vessel licensed in his name to assist his brother in fishing his cod quota. This assistance included the following:

Transporting his brother across open waters to a location where the brother’s smaller vessel was tied up;

Removing cod from a cod bag towed behind his brother’s boat and loading them onto his larger boat;

Delivering the cod, without his brother on board, to a fish processor to be booked in the name of his brother.

Upon being charged under s. 13.1(1) of the Atlantic Fishery Regulations, the issue before the courts was whether or not the accused could take the benefit of an exemption which allowed fish to be transported by a vessel “where the vessel used in transporting the fresh fish is (a) the vessel that was engaged in the catching of that fish”.

At trial level, the Provincial Court judge applied the broad definition of fishing as set out in R. v. Skinner (1997), 147 Nfld. & P.E.I.R. 350 and The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen (1897), 27 S.C.R. 271 to conclude that the assistance provided by the accused’s fishing vessel could be interpreted as being “engaged in the catching of fish”. Using what could be called a literal approach to interpreting the regulations, the trial judge gave the accused the benefit of the exemption and entered an acquittal.

Upon appeal to the Nfld. Supreme Court, the court accepted the findings of the trial judge to the effect that the accused’s vessel was engaged in catching the fish which it carried. After concluding that the accused was involved in illegal fishing because his own quota had been exhausted, the court found that this illegal conduct precluded him from taking advantage of the saving provision in the regulations.

Upon further appeal to the Newfoundland Court of Appeal, the court split with the majority restoring the acquittal of the trial judge and the minority agreeing with the summary conviction appeal judge.

The reasons for judgment of both the minority and majority decisions are quite lengthy and review at length the principals of statutory interpretation. For the most part, where they differ is as follows:

The Majority was of view that in applying the purposive approach to statutory interpretation, “judges are not ‘free to alter the words used if they dislike the result’, thereby contradicting the enacting body’s policy”(para. 93); and

The Majority was of view that since the fish were hauled from a trap with a boat licensed to the brother, there was nothing improper about the accused helping his brother with his vessel for such things as transporting the crew and catch through dangerous waters.

Editor’s note: This case in unusual in that the broad definition of “fishing” as set out in The Ship “Frederick Gerring Jr.” v. Her Majesty the Queen was relied upon by the accused to obtain an acquittal rather than by the Crown who usually benefit from the application of this case.

Offences – Misc. – Incidental Catch – Mistake of Fact

R. v. Harris [2001 N.J. No. 64 (Nfld. Prov. Ct.) (Handrigan Prov. Ct. J.)

This case involved charges against a ground fish cod fisherman for continuing to direct for skate or monkfish after landing catches in excess of his by-catch allowance.

The issue was whether or not he had a defence of reasonable and honest mistake of fact.

The evidence was that although the accused had been fishing for 10 years, this was the first trip that he had directed for monkfish and skate. As a result, he was confused about how to apply the conversion factor of 2.7 for skate wings. When the accused realized he had a problem he contacted the Department of Fisheries and asked for their assistance. Based upon this evidence, the court acquitted.

Editor’s note: See also two other companion judgement released the same day: R. v. Wayne Meade, [2001] N.J. No. 65 and R. v. Strowbridge [2001] N.J. No. 66.

Offences – Misc. – Incidental catch – failure to return “forthwith”

R. v. Norman [2001] N.J. No. 277 (Nfld. S.C) (Dymond J.)

This case involved a charge under s. 33(2) of the Fishery (General) Regulations of failing to “forthwith” return incidentally caught fish. The fish in this case, were 12 dead salmon incidentally caught in a herring net set to catch bait for lobster traps. Upon being caught on the grounds with a bag containing 12 salmon, the accused gave evidence that his intentions were to transport the salmon approximately 50 feet from the end of his net into deeper water to prevent lobsters in the area from being distracted from his lobster traps. At trial, the court registered a conviction.

Upon summary a conviction appeal, the appeal court distinguished the case of R. v. Symonds (1996) 138 Nfld. & P.E.I.R. 109 and entered an acquittal for the following reasons:

Contrary to what was said in R. v. Symonds, the value of the fish involved should not be a consideration;

The accused also had some herring and mackerel aboard which aided his credibility;

“The interpretation of “forthwith” should not be so restrictive as to mean immediately if the explanation given as to why they were not thrown over is reasonable under all the circumstances of the case” (para. 26);

“(F)forthwith does not necessarily mean immediately. It, however, can mean as soon as possible in the circumstances.

Offences – Misc. – Obstruction

Offences – Search and Seizure

R. v. Robie 2001 BCSC 1572 (Powers J.)

At trial, the husband was convicted of obstruction.

One of the issues arising at the summary conviction appeal was whether questioning of the owner of the property at her ranch house, away from the waterway was authorized under the Fisheries Act.

Offences – Misc. - Exceeding By-catch – Definition of “fishing trip”

R. v. Rose [2001] N.J. No. 156 (Nfld. S.C.) (LeBlanc J.)

This case was a summary conviction appeal involving an east coast halibut fisherman who was charged with exceeding the cod by-catch provisions as set out in his fishing licence. His licence provided that if a fisherman exceeds the 30 per cent by-catch level in any fishing trip, then on any subsequent fishing trip if he exceeds the 30 per cent limit he must remove his gear from the water for a minimum period of 30 days. In this particular case, the fisherman exceeded his limit on both May 7 and May 11 and then continued to fish on the following days of May 12 and May 14.

At the trial level, the court acquitted the fisherman on the charge based upon an interpretation of “fishing trip” to mean “catching almost the amount of fish that the boat would allow” (para. 6).

Upon appeal, the acquittal was set aside and a conviction was entered. In entering the conviction the appeal court relied upon section 15(2) of the Interpretation Act to allow him to apply the definition of “fishing trip” contained in the Atlantic Fishery Regulations, 1985. In the alternative, the court also would have found that a fishing trip ended when the fish caught during the time at sea was off loaded.

Offences – Misc. – Def’n of “Fishing”

R. v. Tapper [2001] N.J. No. 157 (Nfld. Prov. Ct.) (Hyslop Prov. Ct. J.)

This case involved a lobster fisherman who had his fishing vessel seized by the Department of Fisheries as a result of charges laid in an unrelated matter. Since his gear was in the water at the time of the seizure, he wrote to the Regional Director and sought assistance in removing his herring nets and lobster traps from the water. Based upon advice he received from the Regional Director, he used another persons boat to remove his nets, but did not remove his lobster traps. As a result of the later discovery of his traps in the water after the closure of the fishing season (empty of bait and lobster), he was charged with fishing during a closed time.

The main issue in the case was whether the accused was “fishing” as defined in section 2 of the Fisheries Act.

The court reviewed authorities such as R. v. Alward (1990) 79 Nfld. & P.E.I. Rep. 262 and Ship Frederick Geering JR. v. R. (1896 27 S.C.R. 271 as well as Regulation 57 of the Atlantic Fisheries Regulations to conclude that the accused was not “fishing”. In doing so, the court noted that “the Regulations contemplate indicia of feasance rather than nonfeasance” (para. 13). The court also noted that this was more a case of abandonment as proscribed by section 25 of the Fisheries Act.

In responding to a defence argument that the Regional Director was counselling the accused to do an illegal act when it suggested picking up the traps with another boat, the court also noted that the accused could have sought an amendment to his licence to allow another boat to assist in retrieving gear from the water.

Offences – Misc. – Evidence – Admissibility of Plant Fish Book – Principled Exception to Hearsay Rule

R v. Wilcox 2001 NSCA 45 (N.S.C.A.)

This case involved a large number of charges against a snow crab fisherman who was alleged to have conspired with two dockside observers to land catches of snow crab in excess of his quota.

Amongst other things, the case concerned the admissibility of a “fish book” containing a hand written table of dates, names, quantities of fish and values of fish. This fish book was prepared by a clerk at the fish plant, despite the fact that he was instructed by his employer to only record information in a computer. The fish book was first discovered during an off-season inspection of the fish plant made pursuant to 49(1) of the Fisheries Act. After the fish book and other documents were observed, the fisheries officers then obtained a warrant pursuant to s. 49.1 of the Act based upon the information obtained during the initial inspection and seized the fish book. One of the issues at trial was whether or not the fish book could be admitted for the truth of its contents under one of the exceptions to the hearsay rule.

At trial, the court refused to admit the fish book into evidence because the clerk “was entirely on his own in keeping this ‘Fish Book’. Neither the Company nor anyone involved with the Company was aware of the ‘Fish Book’ and in fact it was kept against instructions . . .” (para. 43).

Upon appeal, the Crown sought to have the fish book admitted under the principled exception to the hearsay rule. However, prior to considering the application of the principled exception to the hearsay rule, the court reviewed whether or not the fish book could be admitted under any of the traditional exceptions. With respect to the common law business records exception (R. v. Monkhouse, [1988] 1 W.W.R. 725), the court ruled the fish book inadmissible because the clerk was not under a duty to keep the fish book.

With respect to s. 30 of the Canada Evidence Act, on the authorities the court found the question of admissibility to be “seriously debatable” (para. 58). Accordingly, it deemed it to be an appropriate case to apply the test for the principled exceptions to the hearsay rule as developed in R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Hawkins. Under this rule, hearsay must meet the threshold test of reliability and necessity.

With respect to the issue of reliability, the court accepted that the fish book was reliable because the clerk relied upon it for carrying out his work responsibilities. The clerk also testified that during the relevant time period not fisherman ever disputed the amount of payment which was made based upon the information recorded in the book. There was also no suggestion that the clerk had a motive to misrepresent the matters he recorded in the book.

With respect to necessity, the court reviewed the authorities to hold that when there are very high circumstantial guarantees of reliability, the threshold test for necessity is not high. With respect to the fish book, it was argued to be necessary evidence because the detailed nature of the information contained in it did not lend itself to a witness having independent recollection of it. Under the circumstances, the court ruled that Crown had met the threshold test for necessity.

Editor’s note: See also the digest of this case under the heading “Offences – Search and Seizure”.

Offences – Miscellaneous – Undersize Crabs - Practise – Expert Evidence – Scientific Qualifications Not Necessary to Identify Gender of Crabs

R. v. Rayner [2000] N.S.J. NO. 399 (N.S.C.A.) (Saunders J.A.)

This case involved a lobster fisherman charged with unlawful of possession of female crabs. The issue was whether or not the trial judge erred in rejecting opinion evidence from two fisheries officers with respect to the gender of the crabs. In doing so, he was of the view that the evidence of the Fisheries Officers was not of sufficient weight to justify a conviction because neither of the Officers had any formal scientific training on the identification of the gender of crabs.

In overturning the decision and ordering a new trial, the Nova Scotia Court of Appeal held that the trial court applied to high a standard for the reception of opinion evidence. In doing so, it cited two S.C.C. cases for the proposition that:

It is not a requirement that a person be formally educated in a particular area in order to be qualified as an expert. People who are by some particular or special knowledge, skill or training can give an opinion on a mater in issue that falls outside common or popular understanding. This knowledge and expertise can be gained through either study or practical experience or observation (para. 22).

It is noteworthy that the court also cited Sopinka and Lederman for the proposition that since there was no objection to the admission of the opinion evidence, the failure to hold a voire dire was not fatal.

Offences – Incorrect Mesh Size

R. v. Burroughs [2000] BCSC 1428 (Halfyard J.)

This case involved a charge of fishing with a herring gillnet having a mesh size of less than 57 mm contrary to s. 42(1)(d) of the Pacific Fishery Regulations. Evidence was led by the Crown that the net in question was measured by two different fisheries officers one of whom measured the net vertically while the other measured it horizontally. The accused was aquitted at trial and the Crown appealed on the grounds that the trial judge made the following errors:

1. Erred in fact and in law in finding a reasonable doubt existed as to the mesh size;

2. Erred in law in his interpretation of the definition of mesh size as set out in the regulations; and

3. Erred in law in allowing the accused to call opinion evidence with respect to the proper method for measuring mesh size and in accepting such evidence.

With respect to reasonable doubt, the summary conviction appeal court found that there was evidence upon which the court could find reasonable doubt including:

1. Evidence that some net mesh may be different;

2. Evidence that a three per cent error is often allowed;

3. Evidence that the net material performs differently when wet and dry; and

4. Evidence that one fishery officer measured the net vertically while another measured it horizontally.

With respect to the definition of mesh size, appeal court agreed with the trial court that the definition of mesh size in the regulation did not say how the measurement is to be done. However, it found that contrary to the assertion of the Crown, the court did not decide as to what was the proper method of measurement.

With respect to reliance on opinion evidence, given the lack of judicial decisions as to how to properly measure nets mesh (and the uncertainty in the regulations), the court was correct in admitting opinion evidence. The court was also correct in finding that the opinion evidence did not assist it, given the lack of a long standing consistent practice in measurement methodology.

Offences – misc. – catch and retain – failing to return “forthwith”

R. v. McIntyre N.B.J. No. 459 (27 Oct. 1999) (N.B.Q.B.)

This case involved a summary conviction appeal of an acquittal from charges of catching and retaining undersize clams. This case involved two fishermen who were in the water fishing for clams with a rake like tool at the time of apprehension. They had floating containers holding freshly picked clams, some of which were undersized. Despite the fact that the accuseds called no evidence, the trial court acquitted on the grounds that the crown failed to prove the clams had been “retained”.

After reviewing a number of authorities along with section 33 of the Fishery (General) Regulations, the summary conviction appeal court set aside the acquittal on the following grounds:

There is no evidence before the court on which a conclusion could be made that the clams, the possession and retention of which were prohibited were forthwith returned to the place from which they were taken or that the accused persons did not have the opportunity because of circumstances to reasonably comply wit the requirement for returning the claims forthwith to the place from which they were taken.

Offences – Misc. – Failure to prove vessel subject to the jurisdiction of Canada

R. v. Hung Nguyen (21 June 1999) Surrey Reg. No. 94940-01 (B.C. Prov. Ct.) (Lenaghan J.)

In a prosecution under the Fisheries Act for fishing in U.S. waters, the Crown neglected to enter a document entitled “vessel licence” (presumably a Department of Transport licence). As a result, the court acquitted the accused on the basis of a failure of the Crown to prove that the fishing vessel was subject to the jurisdiction of Canada. In making the decision the court declined to accept evidence of a fisheries officer with respect to previous dealings with the vessel on the basis of the best evidence rule. The court also refused to allow the Crown to re-open its case, as inadvertence or neglect can never give rise to the extra-ordinary circumstances justifying re-opening of a case.

Offences - Aboriginal Communal Fishing Regulations - abuse of process

Regina v. George Houvin et al. (6 July 2000) (B.C.C.A..) No. CA026446; 2000 BCCA 427 (Huddard J.A.)

This case was a test case involving a challenge to the Aboriginal Communal License Regulations. In June of 1998, D.F.O. opened a commercial fishery on the Fraser River which only members of certain Indian bands were allowed to participate in. The accused, all non aboriginals, participated in the fishery by way of protest and were charged with fishing during a closed time.

An application for a stay of proceeding was applied for prior to the entering a plea.

At the trial level, the court granted a stay of proceedings for the following reasons:

1. D.F.O.'s practise of issuing communal fishing licences pursuant to the Aboriginal Communal Licence Regulations was illegal because the Minister did not have the right to determine the existence of an aboriginal right as per a previous decision of Judge Thomas in R. v. Cummins (digested herein);

2. The Crown had dispensed with the law by adopting an enforcement policy which focused on one group, and exempted another group; and

3. Since this dispensation policy violated the conscience of the community such that it would genuinely be unfair and indecent to proceed, the court intervened to prevent an abuse of process.

On summary conviction appeal, Curtis J., disagreed with the finding of the trial judge that the practice of issuing aboriginal fishing licences was illegal. On the basis of the absolute discretion given to the minister under s. 7 of the Fisheries Act, the court upheld the validity of the Aboriginal Communal Licence Regulations. He also noted that the “licences do not purport to create an aboriginal right to commercial fishing. The Supreme Court of Canada has held in the Sparrow case that fishing permits are simply a matter of controlling the fishing, not of defining underlying rights.” Accordingly, he overturned the judicial stay of proceedings.

Upon further appeal to the B.C.C.A., the court upheld the summary conviction appeal.

At the appeal, the primary issue was whether or not the Minister of Fisheries could grant a licence to catch and sell fish to an aboriginal group in the absence of a legally recognized aboriginal right to do so. In upholding the right of the Minister to do so, the court applied the Gulf Trollers decision [1987 2 W.W.R. 727 (F.C.A.) to categorize the Minister’s decision to grant such licences as political decision he was entitled and authorized to make.

In argument, the Respondent also relied upon an excerpt from R. v. Marshall [No. 2], [1999] 3 S.C.R. 533 to suggest that the Aboriginal Communal Fishing Regulations do not authorize the commercial sale of fish caught pursuant to those regulations. However, the court analyzed the regulatory scheme and concluded otherwise. In doing so, it emphasized the freedom which the Minister has to regulate the fishery through the imposition of licence conditions as opposed to regulations [The ACFR provide that if there is an inconsistency between the regulations and a condition of the licence, the condition of the licence prevails].

With respect to the stay of proceeding granted by the trial judge, the court concluded that obiter comments in R. v. Cummins to the effect that the aboriginal fishery was illegal were in error. Accordingly, there was no abuse of process to support a stay of proceedings.

Editor’s note: This decision will likely be relied upon by D.F.O. to support its policy of regulating individual fisheries primarily by the use of licence conditions as opposed to regulation. See for example 1999 amendments to the Pacific Fishery Regulations.

Offences - Aboriginal Communal Fishing Regulations - Invalid to the extent that they authorize fishing for commercial purposes

Regina v. John Martin Cummins (26 January 1998) No. 93472-01 (Surrey Prov. Ct.) (Thomas J.)

This was a test case involving a challenge to the aboriginal fishing strategy which allows aboriginal fishers to fish for commercial purposes under the Aboriginal Communal License Regulations. D.F.O. opened a fishery in the Fraser River for aboriginal commercial fishing and the accused, a non aboriginal (the Reform M.P. for Delta-South Richmond), set a net after advising D.F.O. of his intention to do so. He was then charged with fishing during a closed time.

The court found that neither D.F.O. nor the Minister of Fisheries had the right to establish or determine the aboriginal right to fish for commercial purposes. In the alternative, the court held that even if the Minister had such authority, he did not have the right to delegate authority to the chiefs of the Indian Bands to designate which members could fish. Accordingly, the court declared that the portions of the Aboriginal Communal Licence Regulations purporting to authorize a commercial fishery had no legal validity. Since these Regulations had no legal validity, the fishery in question was not lawfully open to anyone fishing for commercial purposes. Since the accused was fishing for commercial purposes, he was found guilty.

Counsel for the Accused: Chris Harvey, Q.C.

Counsel for the Crown: Unknown

Editor’s note: In the case of Regina v. George Houvin et al. (6 July 2000) (B.C.C.A..) No. CA026446; 2000 BCCA 427 the British Columbia Court of Appeal said that obiter comments in this case - to the effect that the Aboriginal Communal Fishing Regulations had no legal validity – were incorrect.

Offences - Unlawfully "permit" a person to fish in NAFO water without a vessel registraton card or fishing licence - Mistake of Fact

This was a summary conviction appeal, which involved charges against the owner of a licensed fishing vessel, who used his fishing vessel at a time the commercial lobster fishery was closed, in order to assist a native person who was fishing pursuant to an aboriginal licence. According to the findings of the trial judge, the vessel owner was assisting the native person to move his traps from one area to another. Although the native person physical removed the traps from the water and emptied them, the owner did the following:

1. Directed where the traps should be placed in the boat;
2. Transported the lobster which were caught;
3. Operated and controlled the vessel;
4. Offered advice on where and how to fish; and
5. Charged a flat fee of $30.00 for his services.

The main issue in the case was whether the acts of the owner amounted to "fishing" as used in s. 33(2) of the Atlantic Fishery Regulations, 1995.

The court reviewed a number of authorities and concluded that the meaning of "fishing" as used in the regulations was somewhat broader than the meaning attributed to the words in the case of The Ship "Frederick Gerring Jr." v. R. (1897), 27 S.C.R. 271. He said:

For the purposes of s. 33(2) "fishing" appears to mean following the pursuit or vocation of fishing, and not the mere taking of fish. "fishing under the authority of a licence" would appear to be broad enough to include the whole of the fishing voyage From wharf to wharf, the requirement for compliance with the conditions of a licence is intended to apply to the entire operation.

On the basis of this definition of fishing, the court overturned the vessel owner's acquittal and entered a conviction.

This case involved the seizure of the Spanish fishing vessel "Estai" while fishing on the high seas pursuant to the provisions of the Coastal Fisheries Protection Act. By way of background information, in 1995, the North Atlantic Fisheries Organization (N.A.F.O). set a total allowable catch for turbot which was roughly one half of the previous years catch and assigned 60% per cent of the catch to Canada and only 12% to the European Community. In response, the European Community invoked the N.A.F.O. objection procedure and unilaterally set its own quota at 69% of the total allowable catch. Consequently, on March 3, 1995 Canada amended its Coastal Fisheries Protection Regulations to make it an offence for Spain and Portugal to fish for turbot on the nose and tail of the Grand Banks which are outside of Canada's 200 fishing zone. On the same day, Canada deposited a new reservation to its general acceptance of the jurisdiction of the International Court of Justice excluding from the Court's jurisdiction "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area . . . and the enforcement of such measures." On March 5, 1995 Canada issued a radio warning to European Community fishing vessels that they had fished enough and would be subject to seizure if they continued. On March 9, 1995, after warning shots were fired, the Spanish fishing vessel "Estai' which was fishing on the nose of the Grand Banks, was boarded and seized. After the posting of a substantial bail, both the vessel and its crew were eventually released.

As a result of the seizure, Spain filed an application with the International Court of Justice against Canada claiming it had interfered with the rights of its vessel's to navigate on the high seas and had also infringed the right of exclusive jurisdiction of the flag state over its ships on the high seas. Canada then immediately filed an objection to the application on the basis that the court was without jurisdiction because of the terms of the reservation filed by Canada.

Despite the fact the dispute between Spain and Canada was substantially settled in May of 1995, the case continued. With the agreement of the parties, the first phase of the case was limited to the issue of the courts jurisdiction.

In a majority decision (12-5) which analyzed both the wording and purpose of Canada's reservation in great depth, the court ruled that it did not have jurisdiction to hear Spain's case.

This case involved a charge against a under section 61(1)(a) of the Fisheries Act for failing to provide answers to information requests from the Department of Fisheries and Oceans. The accused was convicted at the Provincial Court level and acquitted on a summary conviction appeal. Upon further appeal, the conviction was restored on the grounds that it was intended by Parliament that this section of the act should apply to the sports fishing industry.

This case involved a fisher who was charged with failing to permit an observer to go on board his vessel. He was convicted at trial level and acquitted by a summary conviction appeal court. Mr. Justice Roscoe, for the Court of appeal restored the conviction of the trial court and held as follows:

In doing so, the court said that the Fisheries Act and regulations should be given a liberal interpretation. The rule of construction that Penal statutes should be construed narrowly, "becomes applicable only when attempts at the neutral interpretation suggested by s. 12 of the Interpretation Act will leave reasonable doubt as to the meaning or scope of the text of the statue."

This was a summary conviction appeal of an acquittal of a charge of unlawfully fishing with a purse seine. The main issue of the case was whether the accused was fishing with a bar seine for which he held a valid licence, or a purse seine for which he did not. Given the fact that the definition of purse seine had been revoked from the Newfoundland Fishery Regulations, the issue created some difficulty. The accused was fishing with a net which resembled a purse seine, but could not be closed completely at the bottom and was being used in shallow water. The summary conviction court held that the Crown had not established its onus of proving fishing with a purse seine. This decision was upheld by the summary conviction appeal court.

Offences - Pollution - Procedure - Sufficiency of Information - continuing offences - s. 78.1

This case involved a motion to quash 10 of 13 counts of an information. The motion was successful in quashing a number of counts on the basis that they did not state the location of the offence so as to give the court territorial jurisdiction. The motion was unsuccessful in quashing counts of the information which alleged an offence continued over a period of several days. It contains a useful discussion of the law with respect to the quashing of informations.

On a summary conviction appeal, the court confirmed that upon receiving a request from D.F.O., an agent hired by the owner of a fishing vessel to monitor offloading of fish, has an obligation to report catch information to D.F.O.

This case involved the issue of whether or not the definition of "angling" in the Newfoundland Fishery Regulations was mutually exclusive of the definition of "foul hooking or jigging in the same regulations". The Trial Judge and the first level of appeal held that they were mutually exclusive and acquitted the accused because he was in possession of a fish caught by "jigging" (the accused was convicted on another charge of fishing by jigging). The Court of Appeal reversed the findings of the lower courts and held that "angling" includes the activity of "jigging". Accordingly, the accused was convicted of possession of salmon taken by "angling".

This case involved proof that a fisher has exceeded his allowable catch of haddock by way of circumstantial evidence. The Court of Appeal adopted R. v. Jenkins (1908), 14 C.C.C. 21 (B.C.C.A.) and confirmed that the accused does not have to explain away suspicious circumstances.

R. v. Nickerson (16 June 1997) S.S.J. No. 271 C.A.C. NO. 134615 (N.S. C.A.) (Roscoe J.A.)

This case involved a string of 30 tagless traps with 5 traps at the end of the string with tags attached which had been issued to the accused. The Appeal Court upheld the conviction which was based primarily on circumstantial evidence.

Offences - net size - onus of proof of offence against licence holder pursuant to s. 78.4

Offences - closed area - refusing to stop vessel- definition of "fishing" Defences - necessity-

This case involved a vessel fishing for cod by Otter Trawl. The evidence was that the vessel had caught 60,000 lbs. of cod in a open area, but could only take 25,000 lbs. into its tanks at a time. While the first 25,000 lbs. was being processed, the cod end of the net was put back into the water to prevent the fish in the net from freezing. With the net in the water it was necessary for the vessel be under power to prevent the net from being entangled in the propellers. Further, it was necessary for the vessel to pull the net with the wind. This resulted in the vessel going into a closed area with its net partially in the water. The vessel was charged with fishing in closed waters and failing to stop to allow Fisheries officers to board.

With respect to the issue of whether or not the vessel was "fishing" while its net was in the water in a closed area, the court reviewed a number of authorities and concluded that the vessel had "obtained absolute and certain possession" of the fish while it was in an open area. The act of fishing was therefore concluded before the vessel went into the closed area. The placing of the net back in the water, was viewed simply as an act of storage.

With respect to the charge of failing to stop the vessel to allow safe boarding, the court held that the defence of necessity had been established as the vessel could not be safely stopped because of the risk of entangling the net in the propeller.

The accused was apprehended lobster fishing at a wharf located within an area closed to fishing for lobster. The trial court acquitted the accused on the grounds that the Crown failed to prove beyond a reasonable doubt the location where the accused had been fishing.

On appeal, the P.E.I. Supreme Court set aside the acquittal and convicted the accused on the basis of section 610(1) of the Canada Shipping Act which provides as follows:

For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed and every cause of complaint to have arisen either in the place in which the offence actually was committed or arose, or in any place in which the offender or person complained against may be.

In 1994 there was a blanket ban on herring fishing for the entire west coast. This ban was modified on rare occasions to allow fishing. During a 23 minute opening in an area near Comox the accused was charged with fishing outside the open area. The order opening the area for fishing described the boundaries of the area by reference to lines on a chart which were attached as a schedule. The northern boundary of the open area was delineated by way of a line drawn between two floating buoys. The announcement of the opening which was broadcast over the radio described the northern boundary as a line between the two buoys. Since the buoys were hanging from chains and moved with the tide, a central issue of the case was whether the area boundary was based upon a visual line between the buoys as they were positioned by the tide at the beginning of the opening, or a non visual line based upon the position of the buoys on the chart which formed part of the order. This position could be expressed in terms of longitude and latitude and be ascertained by Loran or other electronic equipment. The Court of Appeal held that the non visual line delineated the boundary and, since the crown did not affix the position of the accused based upon the non visual line, it failed to prove an essential element of the offence. Accordingly an acquittal was entered.

In this case the accused was charged under the British Columbia Sports Fishing Regulations with a number of offences including snagging, and not having a sport fishing licence. In the regulations, "sport fishing" was defined as " fishing for recreational purposes" . The accused was convicted at trial. He appealed on the grounds that it had not been proven he was " sport fishing" and that this was an essential element of the offence.

On appeal, Mr. Justice Meredith held that " however difficult it might be to prove that an accused was fishing for pleasure or pastime (as against, for instance, out of hunger or for survival) nevertheless recreation is the vital element that must be proven . . ."

The accused was charged with failing to return undersized crabs to the water " forthwith" . Because the crew were busy hauling traps off of the ground line, undersized crabs remained out of water for periods of 5 to 30 minutes before being measured and returned. The Court reviewed some of the definitions of " forthwith" and concluded that the Crown had failed to prove that the accused did not return the crabs to the water within a reasonable time.

This case involved a fisher who was accused of catching and retaining fish in excess of his quota. At trial, the Crown sought to admit evidence from hail reports and daily fishing logs. The fisher successfully argued that the use of these logs violated his right to be secure from self incrimination pursuant to section 7 of the Charter. His acquittal was overturned on appeal. The majority ruling of the British Columbia Court of Appeal was upheld on appeal to the Supreme Court of Canada and a re-trial was ordered.

There was a 14 month delay between the date of the decision of the Supreme Court of Canada and the retrial. On the day set for retrial, the Crown entered a stay of proceedings. The Court held that a retrial must proceed with greater expedition than the initial trial. Given the 14 month delay the Court would have entered a stay, even if the Crown had not done so.

The accused applied under section 24(1) of the charter for an order of costs. The Court held that the Crown had breached its duty to " always act fairly and conduct itself in a manner respectful of the rights of litigants" and ordered the Crown to pay all the accused's expenses including legal fees and disbursements.

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