This case involved a fisheries officer and two fisheries guardians who were conducting a patrol in a Zodiac when they observed the accused in his dory. Although they were some distance away, they thought they observed him fishing. The fisheries officer motioned for the accused to come over to the fishing vessel, but instead the accused drove his dory on to a nearby beach in front of his cabin. The accused gave evidence that he was not fishing at the time, but was filling his engine with fuel. He said he observed the request to go over to the fisheries vessel, but felt that because of the sea conditions, strong current and shoals close by, it was not safe. Instead he motioned for the fisheries office to conduct the inspection on the beach where he had previously seen a similar Zodiac land on a previous occasion. At a later time, the accused refused to provide the fisheries officer with his name. As a result of these actions, the accused was charged with obstruction under s. 62 of the Fisheries Act.
In deciding the case, the Court reviewed the obstruction provision of both the Criminal Code and the Fisheries Act.
The Court also reviewed the inspection powers under s. 49 and concluded that it incorporated the traditional subjective-objective test (para. 39), which it described as follows:
"[I]n determining whether a fishery officer or guardian was carrying out duties and functions pursuant to section 49 of the Fisheries Act, the officer or guardian must have a subjective belief that there is something in the place to be searched in respect of which the Fisheries Act or regulations apply. The search must be for the purpose of ensuring compliance with the Fisheries Act or regulations. In addition, the officer’s or guardian’s belief must be objectively reasonable in the circumstances."
Given the fact that Fisheries Offences are strict liability offences, the Crown does not have to prove that the accused intended that his act would hinder or obstruct. However the Crown does have to prove the the act of obstruction was purposely committed. Once the Crown has proved the actus reus (prohibited act) it is open to the accused to prove he or she took all reasonable steps to avoid obstructing or hindering the fisheries officer.
After reviewing the law,including the burden of proof and the facts, the Court rejected he Crown’s evidence that the accused was fishing at the time he was observed. Accordingly they did not have an objective belief to support a s. 49 inspection. As a result the accused did not have a lawful obligation to stop the dory for an inspection.
Given the fact that an inspection was not lawful under s. 49, it followed that the accused’s subsequent refusal to identify himself was also lawful.
Given all of the findings, the Court found that the actus reus (prohibited act) of the offence was not made out and acquitted the accused.