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.