R v. McDonald

In Fish Cases, Fisheries Practice, Offences, Search and Seizure on (Updated )

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 Nguyen, 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).