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 DiligenceOffences - Due Diligence - Failure to maintain proper distance from lobster traps R. v. Raymond [2006] NBPC 27 (link) 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 R. v. Keough [2006] N.J. No. 261, 2006 NLTD 142 (link) 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. Editor's note: S. 25(3) of the Fisheries Act provides that:
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 R. v. Doody [2005] N.J. 77 (Nfld. and Lab. Prov. Ct.) 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" R. v. Gallant [2005] P.E.I.J. No. 15, 2005 PESCTD 6 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). Offences - Due diligence - Unlawfully releasing fish back into water R. v. Tremblett [2004] N.J. No. 247 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 R. v. McIntyre [2004] N.B.J. No. 140, 2004 NBPC 10 Offences - Due Diligence - Processing at Sea R. v. Croft [2004] N.J. No. 90, 2004 NLSCTD 46 (NFld. and Lab. S.C.) Offences - Due Diligence - Mistake of Fact R.v. Croft [2003] N.S.J. No. 368, 2003 NSCA 368 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. Offences - Due Diligence - Mistake of Fact R.v. Kinghorne [2003] N.B.J. No. 358, 2003 NBQB 341 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 R. v. Cox [2003] N.J. No. 98, 2003 NLSCTD 56 (Nfld & P.E.I. S.C.) (Dymond J.) 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. Upon appeal, the following issues were
raised:
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). Offences – Due
Diligence Defence – By-catch of Halibut 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)
Offences
– Due Diligence 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) Offences – Due
Diligence –Incidental Catch of Swordfish R. v. Hennebery 2001 NSPC
25 (Williams Prov. Ct. J.) 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). Offences – Due
Diligence – Fishing in U.S. Waters 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.
R. v. Vanbuskirk (21 June 1999) No. 215 (N.S.S.C.) 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?" Offences - Undersize Lobster - Due Diligence Regina v. LeBlanc (14 April 1998) N.B.J. no. 176 (N.B.T.D.)(McLessan J.) 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. Counsel for the Crown: William C. Kean Counsel for the Accused: J. Anderson Ritchie Offences - Due Diligence - Exceeding by-catch - Reliance on crew member Regina v. Harris (25 November 1997 ) N.S.J. No. 484 (N.S.C.A.) 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. Offences - Undersize - continuity - Defences - Due Diligence R. v. Roy (24 March 1997) N.S.J. No. 135;C642720;C642719 (N.S.Prov.Ct.) 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." Counsel for the Crown: James P. DiPersio Counsel for the Accused: Russell W. Cushing Offences - Closed Area - Due Diligence Defence R. v. Smith (30 October 1996) Duncan Registry No. 16110 (B.C. S.C.) 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 – closed season –
delegation of authority to sign variation order R. v. Corcoran 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. Offences - undersize fish - Defences - Failure to Publish Variation Order - 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. Counsel for the Crown/Appellant: Michael Seaborn Counsel for the Respondent : Did not appear Offences - closed season - validity of variation order R. v. Corcoran (July 22, 1997) N.J. No. 180 (Nfld. S.C.) (Hickman J.) 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 SeizureSearch and Seizure - Demand by fisheries offices to attend at fisheries office with illegally harvested Narwhal tusk - No credibly based suspicion sufficient to trigger statututory power of inspection - R. v. Kooktook [2004] Nu. J. No. 5, 2004 NUCJ 7 Offences - Search and seizure P.v. Diep [2005] A.J. No. 110, 2005 ABCA 54 (Alta. C.A.) 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. The appeal court upheld the validity of the search for the following reasons:
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. R. v. Leahy 2004 NSPC 62, [2004] N.S.J. No. 485 (N.S. Prov. Ct.) Offences - Search and Seizure - No reasonable expectation of privacy in premises of third party - Also sufficient ground for inspection R. v. Morrell [2004] N.S.J. No. 19, 2004 NSPC 4 (N.S. Pov. Ct.) Offences - Search and Seizure - R.v. Kinghorne [2003] N.B.J. No. 358, 2003 NBQB 341 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 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. Offences – Search
and seizure – Roadside inspections R. v. Stengler [2003] S.J. No. 550, 2003 SKPC 119 (Sask. Prov. Ct.) 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. Offences
– Search and seizure 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). Offences – Search and Seizure Practice –
Release of Fishing Vessels from Seizure R. v. McDonald 2002 NSCA 135 (N.S.C.A.) affirming 2002 NSSC 66 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. Offences – Misc.
– Obstruction Offences – Search
and Seizure R. v. Robie 2001
BCSC 1572 (Powers J.) This
case involved a fisheries officer who was inspecting a property under s. 49 of
the Fisheries Act to see if logging on the property had any impact on
fish habitat. While attempting to question the woman who was the owner of the
property in question, her husband, the accused, aggressively placed himself
between his wife and the fisheries officer, preventing him from even attempting
to communicate with the property owner and ordering him off the property. At
trial, the husband was convicted of obstruction. One
of the issues arising at the summary conviction appeal was whether questioning
of the owner of the property at her ranch house, away from the waterway was
authorized under the Fisheries Act. In
holding that the search was valid, the appeal court referred to s.49(1.2) of the
Act which provides that the owner or
person in charge of a place stall (a) give all reasonable assistance and (h)
provide the officer with any information he or she may reasonably require. The
second issue was whether or not the conduct of the property owner’s husband
amounted to obstruction. In
upholding a conviction for obstruction, the summary conviction appeal judge said
as follows: This was not simply saying rude words or unpleasant words. There was a Aboriginal Rights and
Defences – Buying and selling salmon caught under authority of a food fish
licence Offences – Search and
Seizure Regina v. Q.M.P. Fisheries Ltd. et al 2001 BCPC 0210 (Lytwyn, Prov. Ct. J.) (www.provincialcourt.bc.ca/judgments/pc/2001/02/p01 0210.htm) 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: In the public and highly polarized environment of the salmon fishery on the Fraser, it is important the authorities act in accordance with the law, inform themselves of their obligations under the Charter of Rights and Freedoms and act in accordance the these obligations. The D.F.O. should provide its officers with the resources to do so. Given the seriousness of the breaches, the lack of good faith, I am satisfied on the balance of probabilities that the administration of justice would suffer greater disrepute from the admission of the evidence than from the exclusion. Offences – Search
and Seizure 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 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 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) R. v. Sandover-sly (11 January 1999) No. 20254 (B.C.S.C.) Offences - Search and Seizure R. v. Kinnear (13 June 1997) No. AD-0726 (P.E.I.C.A.) (Mitchell J.A.) 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)Offences - By Licence Holders and Employers - Liability of Company - Liability of Directors - lobster fishery Offences misc. - circumstantial Evidence R. v. T.&T. Fisheries Inc. [2005] P.E.I.J. No. 74 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. Offences - By licence holders (s. 78.4) - Crab fishing in closed area R. v. Hynes [2004] N.J. No. 450 (Nfld. & Lab. Prov. Ct.) 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. Offences by Licence Holders R. v. Forsey [2003] N.J. No. 99, 2003 NLSCTD 57 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 R. v. Golem (11 April 1997) No. 800/97 (Ont. Ct. of Justice) (Flinn J.) This case involved the discovery of an illegal gill net with two different identification numbers upon it. The accused, was the corporation who held a licence under one of the two identification numbers. At trial, no evidence was led with respect to the person to whom the second identification number was issued. Upon convicting the accused, the Justice of the Peace indicated that after leading evidence of the two identification numbers attached to the net, the onus then shifted to the accused to offer an explanation. Upon appeal, it was held that no such reverse onus existed and the Crown had failed to establish the offense beyond a reasonable doubt. Counsel for the Accused: D.R. Nash Counsel for the Crown: A.R.E. Ryan
Offences - SanctionsLicences – sanctions – s. 7 of Fisheries Act not to be used to impose penalty Mathews v. Canada (26 May 1999) No. A-677-96 (Fed. C.A.) 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." Editors note: See my article on this case entitled "Licence Sanctions – A Court Imposes Limits on the Minister’s Discretion" in the Papers and Articles section of this page. Licences - sanctions - s. 7 of Fisheries Act not to be used to impose penalty Kelley v. Canada (Attorney General) (Sept. 7, 1997) T-1832-6 (Fed. Ct.) (MacKay J.) 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". Counsel for the Accused: John L. MacDougall, Q.C. Counsel for the Crown: John L. Ashley 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) R. v. Reid [2006] B.C.J. No. 1202, 2006 BCPC 220 (link) 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. Offences/ Forfeiture R. v. Rideout [2005] N.S.J. No. 374, 2005 NSCA 1222 (N.S.C.A.) 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. Offences - Forfeiture - Not allowed under s. 72(3) R. v. Mark [2004] B.C.J. No. 666, 2004 BCCA 176 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 - R. v. Meade [2004] N.J. No. 49, 2004 NLCA 11 Offences - Relief from Forfeiture - Proof of expenses when calculating net monetary benefit R. v. Oates [2004] N.J. No. 29, 2004 NLCA 6 Offences - Forfeiture of Monetary Benefits - Can take into Account expenses R. v. Oates [2004] N.J. No. 29, 2004 NLCA 6 See digest of trial level decision infra. Offences - Relief from forfeiture - No need to prove positive inquiry when vessel owned by son of offender Hurley v. Regina [2003] N.J. No. 322, 2003 NLSCTD 178 (Dymond J.)
Offences - Forfeiture (Partial) R. v. Paul [2003] N.S.J. No. 295, 2003 NSSC 164 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.
Offences – Forfeiture R. v. Ulybel
Enterprises Ltd. 2001
SCC 56 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. Offences – Forfeiture R. v. Sandover-Sly (2 August 2000) [2000] BCCA 445 (B.C.C.A.) (Finch J.) 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. Offences – forfeiture R. v. Cox; R. v. Forsey 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
– Forfeiture R. v.
Hudson 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. Offences – Forfeiture R. v. Weir 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. Offences – Sentencing – Forfeiture of fish under s. 72(2) of the Fisheries Act. Regina v. Mood (5 Feb. 1999) N.S.J. No. 59 (N.S.C.A.) 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. The reasons of the court for declining to apply s. 72(2) were as follows:
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. Offences -
Forfeiture 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. The mitigating factors in favour of the accused were:
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
– Forfeiture – Abalone Poaching R.
v. Sandover-Sly 2002
BCCA 56 (B.C.C.A.) (Finch C.J.B.C.) 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.). Offences
– Forfeiture – Diving for Lobster R.
v. Waver 2002 NBQB 137 (Guerette,
J.) 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 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). Offences
– Forfeiture – Extension of Limitation Period R. v.
Cobb 2002 05T 0003 (Nfld. and Labrador T.D.) (Dymond J.) 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.).
Offences
– Forfeiture of Monetary Benefits (s. 79) 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. Postscript: Upheld on Appeal at 2004 NLCA 6 Offences – Forfeiture - No abuse of trust per s. 718 Crim Code R. v. Gould (25 November 1998) No. 318 (NFLD. Sup.Ct.) 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. Offences - Sentencing - Forfeiture of gear under s. 72 (2) of the Fisheries Act Regina v. Hallohan (7 Oct. 1997) N.J. No. 279 (NFLD. S.C.) (Easton J.) 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. Counsel for the Crown: J Counsel for the Accused: Offences - Sentencing - Relief from forfeiture of property owned by innocent third parties - Greening v. Canada (Ministry of Fisheries and Oceans) N.J. No. 266 (N.S.C.A.) 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." Post script (16 June 04): See also Hurley v. Canada 2003 NLSCTD 178
Offences - Prohibitions from FishingOffences - By licence holders - Lobster fishing with untagged pots R. v. Grandy [2005] N.J. No. 65, 2005 NLTD 40 (Nfld. & Lab. S.C.) 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). Offences - Sentencing - Fishing Prohibitions for illegal lobster fishing 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. Offences - By licence holders - Lobster fishing with untagged pots R. v. Grandy [2005] N.J. No. 65, 2005 NLTD 40 (Nfld. & Lab. S.C.) 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). Offences - Officially Induced ErrorOffences - Officially Induced Error Canada v. Shiner [2006] N.J. No. 168, 2006 NLTD 93 (link) Offences - Officially Induced Error R. v. Derry (22 June 1999) Prince Rupert Registry No. 19433 (B.C.S.C.) 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.) See also paper: IGNORANCE OF THE LAW IS NO EXCUSE . . . OR IS IT? The Defence of Officially Induced Error Fisherman Life July 2006 Offences - MiscellaneousOffences - Misc. - Dismissal for Delay (Total of 63 months) Aboriginal Rights and Defences - Dismissal for Delay R. v. Reid [2006] B.C.J. NO. 1204, 2006 BCPC 219 (link) 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. Offences - Misc. - Amendment of Information at trial R. v. Nguyen [2006] B.C.J. No. 2665, 2006 BCSC 1500 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 dis |
