R. v. Munro, 2022 BCPC 203

Citation: R. v. Munro 2022 BCPC 203 Date: 20220928 File No: 6931-1 Registry: Masset IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADAM THOMAS MUNRO SILAS LEVESQUE ATM FISHING LTD. CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: A. Switzer Counsel for the Defendants: I. Yang as Agent for C. Harvey Place of Hearing: Prince Rupert , B.C. Dates of Hearing: April 20, 21, June 1, July 20, 21, 2022 Date of Judgment: September 28, 2022 A Corrigendum was released by the Court on September 29, 2022. The corrections have been made to the text and the

Corrigendum is appended to this document. [ 1 ] These are my Reasons for Judgment . I. OVERVIEW [ 2 ] On March 6, 2020, Masset Court Information 6931-1 was sworn. The Public Prosecution Service of Canada (“PPSC”) approved charges against three accused and proceeded by way of

summary conviction as follows: Count 1 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between July 22, 2018, and August 9, 2018, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority of a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of the licence, to wit: Fishing for Chinook shall cease when the maximum set out in subsection 1(1)(a)(

i) is reached, contrary to Section 22(7) of the Fishery (General) Regulations, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act. Count 2 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between August 3, 2018, and August 15, 2018, at or near Prince Rupert, in the Province of British Columbia, did sell fish caught in contravention of the Fisheries Act or its regulations contrary to

Section 33 of the Fisheries Act , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act. Count 3 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between July 22, 2018, and August 15, 2018, at or near the Village of Masset, in the Province of British Columbia, and elsewhere in the Province of British Columbia, did possess fish caught in contravention of the Fisheries Act or its regulations contrary to

Section 33 of the Fisheries Act , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . Count 4 Silas Levesque, between July 28, 2018, and November 5, 2019, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority of a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of licence, to wit: the vessel master shall submit fish slips as required by licence not later than seven (7) days after landing, contrary to Section 22(7) of the Fishery (General) Regulations, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . [ 3 ] A multiday trial started on April 21, 2022. At the commencement of the trial, each of the defendants made Admissions of Fact . During the course of the trial, the prosecution filed eleven exhibits with the court, including seven affidavits. The defence filed four exhibits with the court. Three witnesses testified on behalf of the prosecution: I.

Robert Edwards, a Regulations Officer with the Conservation and Protection Division of Fisheries and Oceans Canada (DFO), who, in 2018, worked at DFO as a licencing officer, helping DFO clients get their licences in order for the recreational, commercial and aquaculture fisheries. II. Lenda Girard, a Community Fisheries Technician with DFO, who in the summer of 2018, worked as a validator with DFO contractor J.O.

Thomas & Associates, counting and recording the number of species and individual fish being offloaded from commercial fishing vessels involved in the Salmon Area F Salmon Troll Licence 2018 fishery, including the Wind Walker I on both July 22 and August 8, 2018; and III. Peter Katinic, the Haida Gwaii Senior Reconciliation Implementation Advisor at DFO, who in 2018 was responsible for the management of salmon and herring fisheries in the Haida Gwaii Region. He testified about how the commercial fishery works generally and he testified specifically about the Chinook salmon quota allocation system.

The defence called no witnesses. [ 4 ] On July 21, 2022, at the beginning of submissions, counsel for the PPSC directed a stay of proceedings with respect to ATM Fishing Ltd. on counts 1, 2 and 3. II. FACTS [ 5 ] Throughout 2018, Munro was the owner of the Wind Walker I, a vessel licenced to participate in British Columbia’s Salmon Area F Salmon Troll Fishery. Munro was also the sole director of ATM Fishing Ltd. between July 22 and August 9, 2018, while Levesque was the skipper, also known as the vessel master, of the Wind Walker I.

In 2018, both Munro and Levesque possessed a valid fish harvester registration card (“FRC”). [ 6 ] Munro’s FRC 265 2018 was issued on December 23, 2017, and was valid up to and including December 31, 2018. He had possessed a FRC annually from at least October 26, 2000. Munro’s 2018 FRC included the following conditions: This license is issued under authority of the Fisheries Act and

Section 19 of the Pacific Fishery Regulations , 1993 and confers, subject to provisions of the Fisheries Act and Regulations made thereunder, the authority to fish under the following conditions. 1. This license is non-transferable.

2. This registration must be carried while fishing and produced on demand by a fishery officer or fishery guardian and 3. Compliance with the Fisheries Act . Munro’s 2018 FRC included the following information as well: Fee Paid $60.00 Date Printed: 23 Dec 2017 Licence Serial No.: 444306 [ 7 ] Levesque’s FRC 2319 2018 was issued on March 16, 2018 and was valid up to and including December 31, 2018. He had possessed a FRC annually from at least April 24, 2012. Levesque’s 2018 FRC included the following conditions: This license is issued under authority of the Fisheries Act and

Section 19 of the Pacific Fishery Regulations , 1993 and confers, subject to provisions of the Fisheries Act and Regulations made thereunder, the authority to fish under the following conditions. 1. This license is non-transferable. 2. This registration must be carried while fishing and produced on demand by a fishery officer or fishery guardian and 3. Compliance with the Fisheries Act .

Levesque’s 2018 FRC included the following information as well: Fee Paid $60.00 Date Printed: 16 Dec 2018 Licence Serial No.: 446684. [ 8 ] The Wind Walker I had a valid salmon troll licence for the 2018 commercial fishing season, Salmon Troll Licence 2018 AT 3150 2018, issued on June 21, 2018, with an expiry date of March 31, 2019. [ 9 ] In 2018, there were 241 Chinook salmon troll licences for the Salmon Area F Salmon Troll Fishery.

The total 2018 Area F Total Allowable Catch (“TAC”) of Chinook salmon allocated to the commercial troll fishery was 93,900, meaning each of the commercial fishing troll licence holders were entitled to one of 241 shares, expressed in terms of a percentage. Thus, a maximum of 0.4149 percent of the total TAC. In 2018, 0.4149 percent equalled 390 Chinook salmon. [ 10 ] The Conditions of 2018/2019 Salmon Area F Licence, amended June 20, 2018, issued on June 21, 2018 (“Conditions of Licence”), set out the Wind Walker I’s TAC.

The Affidavit of Peter John Katinic , dated April 12, 2022, confirms that the Wind Walker I’s initial TAC of Chinook salmon for 2018 was 0.4149%, which equalled 390 Chinook salmon. [ 11 ] Although a licence holder’s TAC cannot be carried from one year to the next, it is a common practice in British Columbia for licence holders in the commercial fishery to transfer a share of their TAC to another licence holder.

Section 1. Species and quantities of fish permitted to be taken of the Conditions of Licence specifically allowed for such a practice. [ 12 ] The DFO is not involved in the licence holders’ negotiations or financial dealings concerning the decision to transfer a share. As such, the DFO is unaware of the terms agreed to by the parties. All that matters to the DFO is that a valid application to transfer a share is submitted to them.

Upon receiving the valid application to transfer a share, the DFO processes the application and, upon approval, the DFO assigns a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation. [ 13 ] In the Wind Walker I’s case, the Conditions of Licence allowed the Wind Walker I to acquire a maximum total uncaught quota equal to three individual transferable quotas, which equates to 1.245 percent of the 2018 Area F TAC. In other words, 1,170 Chinook salmon.

There is no evidence before the court that the Wind Walker I acquired a part or all of another fishing licence holder’s 2018 Area F TAC of Chinook salmon. Accordingly, the Wind Walker I’s Conditions of Licence only allowed for the catch and retention of 390 Chinook salmon in 2018. [ 14 ] On July 22, 2018, 357 Chinook salmon caught in the commercial Salmon Area F Salmon Troll Fishery were offloaded from the Wind Walker I in Prince Rupert, British Columbia.

Levesque and Girard signed Chinook Validation Record 009449 on July 22, 2018, confirming that the Wind Walker I had a Chinook Current Vessel Remaining Chinook Quota (“VRQ”) of 375 Chinook salmon and it had offloaded 357 Chinook salmon, leaving it with an Updated VRQ of 18 Chinook salmon.

Chinook Validation Record 009449 was subsequently corrected to record that the Wind Walker I had a VRQ of 390 Chinook salmon on July 22, 2018, and it had offloaded 357 Chinook salmon on July 22, 2018, leaving it with an Updated VRQ of 33 Chinook salmon. [ 15 ] On August 8, 2018, 327 Chinook salmon caught in the commercial Salmon Area F Salmon Troll Fishery were offloaded from the Wind Walker I in Prince Rupert, British Columbia.

Levesque and Girard signed Chinook Validation Record 009512, confirming that the Wind Walker I had a VRQ available of 33 Chinook salmon and it had offloaded 327 Chinook salmon on August 8, 2018, meaning it had offloaded 294 more Chinook salmon than allowed by its VRQ. [ 16 ] During the course of the cross-examination of both Girard and Katinic, defence counsel suggested to the witnesses that they knew or were told that Nick at 7 Seas often arranged for the sale or transfer of TACs from one licence holder to another.

The line of questioning suggested that Nick at 7 Seas had dropped the ball and failed the defendants by not preparing and completing a valid transfer of another licence holder’s TAC to the Wind Walker I prior to August 8, 2018. All the same, regardless of who was responsible, the fact

remains that the Wind Walker I did not receive all or part of another licence holder’s TAC. Accordingly, on August 8, 2018, the maximum number of Chinook salmon that the Wind Walker I was allowed to fish for, sell or possess, was 33. Logbook [ 17 ] The Conditions of Licence required the Wind Walker I’s vessel master to maintain a paper or electronic logbook. In 2018 and 2019, Archipelago Marine Research Ltd. (“AMR”) was the commercial salmon fishery paper logbook service provider contracted by the DFO.

For the 2018 commercial salmon fishing season, fishers who chose the paper logbook recordkeeping were required, by condition of licence, to return their paper logbooks to AMR prior to April 30, 2019.

PART 1, s. 5(14)(

a) Harvest Log , of the Wind Walker I's Conditions of Licence states: …the licence holder shall ensure that all paper harvest logs issued, whether used to record fishing or not, are delivered to the issuing Catch Reporting Service Provider by April 30, 2019 and that all records recorded in those paper harvest logs are entered into the Salmon Catch database by December 31, 2018. Returned harvest logs shall contain the original copies of all pages issued. [ 18 ] The Wind Walker I selected the paper logbook reporting option for the 2018 commercial fishing season.

The Wind Walker I was issued paper logbook T85137 for the 2018 Area F commercial salmon fishing season. The Wind Walker I’s paper logbook T85120 was received by AMR on February 18, 2019. The Salmon Data Unit of the DFO received the Wind Walker I's paper logbook T85137 from AMR on February 28, 2022. There is no evidence in the paper logbook as to the selling of the Chinook salmon offloaded from the Wind Walker I on July 22 and August 8, 2018, or what price was received.

Fish Slips [ 19 ] As set out in the April 7, 2022, Affidavit of Martin Huang , in the usual and ordinary course of business, Fish Slips are created to record the value of fish sold by commercial fishers working in British Columbia. The DFO’s Fisheries Management Data Unit (“FMDU”) stores and maintains all Fish Slips records related to the landing of commercial fishing harvest in British Columbia.

Fish Slips become a record of the landing of a fishing trip, and include information such as the vessel master’s name, vessel name, plant name, fishing date, lending date, area fished, trip length, type of gear used, species, weight, price, form, and value. FMDU uses the information in Fish Slips to create catch statistics.

The Conditions of Licence required Fish Slips to be filled out and remitted by the vessel master to the FDMU not later than seven days after landing. [ 20 ] DFO records include Fish Slips setting out the various types and numbers of fish offloaded from the Wind Walker I on June 14, 2018, October 10, 2018, and November 2, 2018.

However, DFO records have no Fish Slips from the Wind Walker I for July 22 or August 8, 2018. [ 21 ] The April 11, 2022, Affidavit of Sandra MacLean , includes as exhibits copies of: i. the original Chinook Validation Record 009449, ii. the corrected Chinook Validation Record 009449, iii. a Lingcod on Salmon Offload Worksheet dated July 22, 2018, showing 11 Lingcod being offloaded from the Wind Walker I and sold to Seven Seas, iv.

Chinook Validation Record 009512, v. a Lingcod on Salmon Offload Worksheet dated August 8, 2018, showing 14 Lingcod being offloaded from the Wind Walker I and sold to Seven Seas, but the is no record of the Chinook salmon offloaded on July 22 or August 8, 2018, being sold or a price paid for the Chinook salmon. [ 22 ] The prosecution led no evidence during the trial as to the selling of the Chinook salmon that were offloaded from the Wind Walker I on July 22, and August 8, 2018.

The prosecution led no evidence during the trial as to the price paid for the Chinook salmon that were offloaded from the Wind Walker I on July 22 and August 8, 2018. [ 23 ] In his cross-examination of Girard, defence counsel confirmed with Girard that Levesque told her he was selling his fish to 7 Seas, albeit it is unclear from the cross-examination if the conversation between Girard and Levesque concerning the selling of the fish to 7 Seas took place on July 22 or August 8, 2018. [ 24 ] At

PART 1, s. 9 Fish Slips , of the Wind Walker I's Conditions of Licence, it states: 9. Fish Slips 1) The vessel master shall provide records, in the form commonly known as a fish slip or sales slip, of all fish caught and retained under authority of this license. 2) A fish slip shall be completed for each landing. 3) The vessel master shall ensure that each fish slip contains the following information: (

i) vessel name; (ii) vessel registration number; (iii) name and Fisher Identification Number (FIN) of the vessel master; (iv) name of the tally person; (

v) name of the fish buying station accepting delivery or the location of public sales; (vi) date of landing; (vii) time of landing; (viii) number of days fished in each Area; (ix) landed weight of each species by grade and method of dressing reported separately in pounds; (

x) number of pieces landed for each species by grade and method of dressing of fish; (xi) price paid per pound, by species; and (xii) total catch value of all species. 4) The vessel master, or the person delivering the fish, shall print their name and sign the fish slip once completed.

5) The vessel master shall submit slips not later than seven days after landing. Slips shall be mailed to: 6) Fisheries and Oceans Canada Fisheries and Aquaculture Management Branch, FM Data Unit 7) 200 – 401 Burrard Street Vancouver BC V6C 3S4 8) Where the vessel’s license for more than one Salmon Area, catch from one each Salmon Area shall be reported on separate fish slips. 9) Fish slips may be downloaded and printed at http://www.pac.dfo-mpo.ca/stats/sishslips-carnets/index-eng.html.

Fish slip books mayalso be ordered from the printer at user cost at http://www.pac.dfo-mpo.ca/stats/sishslips-carnets/index-eng.html. Phone (604) 666-2716for more information. Physical Attachment of Conditions of Licence [25] There is no evidence before the court that the Conditions of Licence had been stapled or otherwise physically fastened to theWind Walker I’s Salmon Troll Licence 2018 AT 3150 2018. Munro as Owner / Licence Holder and Employer [26] There is no evidence that Munro was on the Wind Walker I on July 22, or August 8, 2022.

Nevertheless, he is being prosecuted,as allowed by the Fisheries Act, because he was the owner/licence holder of the Wind Walker I and he was Leveque’s employer orLevesque was his agent: Offences by employers 78.3 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by anemployee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless theaccused establishes that the offence was committed without the knowledge or consent of the accused.

Offences by licence holders 78.4 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person inrespect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations,whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence wascommitted without the knowledge or consent of the accused. III.

DEFENCES RAISED [27] In answer to the charges, the defendants rely upon two defences: 1) A failure by the prosecution to prove an essential element of the actus reus on each of counts 1, 2, 3 and 4. Specifically, thedefendants say that there is no evidence that the Conditions of Licence were rendered valid and enforceable by attachment to WindWalker I’s Salmon Troll Licence 2018 AT 3150 2018. Validity, according to the defendants, is subject to a condition precedent, namelythat the Conditions of Licence be physically attached to Wind Walker I’s Salmon Troll Licence 2018 AT 3150 2018.

It follows, in thedefendants’ view, that prior to physical attachment of the Conditions of Licence to Salmon Troll Licence 2018 AT 3150 2018, theConditions of Licence have no legal validity whatsoever. 2) Section 22(7) of the Fishery (General) Regulations is ultra vires and accordingly not enforceable because the Fisheries Act in 2018did not authorize the making of regulations creating criminal offences. If the defendants are correct in their position, they say that s. 22(7)is not valid as it is a regulation that purports to make it a criminal offence to breach fishing licence conditions.

In turn, it follows that theacts alleged in Counts 1 to 4 of the information cannot support a finding of guilt on any of the counts. In particular, the defendants submitthat: a) Section 22(7) obliges fishers to comply with licence conditions, and thus makes any given set of licence conditions a "code ofconduct," with which failure to comply results in penal consequences. Since the Minister creates licence conditions, the defendants assertthat this amounts to a sub-delegation of legislative, or regulatory, powers to the Minister.

The defendants assert that there is a rule of lawthat requires express wording within a statute to enable a Governor in Council to sub-delegate a legislative or regulatory function. Theysay that in 2018 there was no power in the Fisheries Act permitting the Governor in Council to sub-delegate legislative authority to theMinister.

b) Licence conditions are necessarily administrative in nature. If administrative in nature, there can be no penal consequence for failureto comply with the conditions - only licence suspensions or cancellations.

c) Report No. 75 - Disallowance of the Standing Joint Committee for the Scrutiny of Regulations and the Notice of Disallowance datedMarch 14, 2005 (“Report No. 75”), is persuasive authority for the defendants’ argument. They note that Report No. 75 concludes licenceconditions are promulgated in the exercise of an administrative power and that breach of licence conditions cannot be “moved from theadministrative to the regulatory/criminal sphere without express legislative authority in the parent statute." [28] In support of their arguments for acquittal, the defendants rely upon the following case law: Keough v.

Memorial University of Newfoundland, (1980) 26 Nfld. & P.E.I.R. 386 R. v. Tenale, (BC CA) Re Peralta et al. and The Queen in right of Ontario et al., (ON CA)

Gulf Trollers Assn. v. Canada (Minister of Fisheries and Oceans), (FCA), [1987] 2 F.C. 93 Peralta v. Ontario, (SCC), [1988] 2 SCR 1045 R. v. Mark, [1989] B.C.J. No. 962 R. v. Roach, [1989] B.C.J. No. 2531 R. v. Roach, (BC CA) Antonsen v. Canada (Attorney General), (FC), [1995] 2 F.C. 272 R. v. Joe, 2000 BCSC 1100 R. v. Edwards, 2002 BCSC 430 R. v. Murray, 2005 BCPC 511 R. v. Ivy Fisheries Ltd., 2006 NSPC 5 R. v. Chase, 2006 BCCA 275 Canada v. Hache, 2011 FCA 104 Gillett v. Canada, 2017 FC 574 R. v. Helin (July 24, 2018), Prince Rupert 29155-1, BCPC, Klinger, J. R. v.

Forbes (September 25, 2018), Prince Rupert 29162-1, BCPC, Stewart, J. R. v. Tang, 2021 BCSC 642 [29] In submitting that the PPSC has proven the counts beyond a reasonable doubt, the prosecutor not only referred to a number of thecases provided by defence counsel, but also relies upon the following case law: Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order in Council and of an Order of the Controllerof Chemicals Made Pursuant Thereto, (SCC) R. v. T.W., (BC CA) R. v. Furtney, (SCC), [1991] 3 SCR 89 (SCC) Therrien (Re), 2001 SCC 35 Jackson v.

Ontario (Natural Resources), 2009 ONCA 846 R. v. 605463 B.C. Ltd., 2022 BCPC 77 [30] I have read and considered all of the cases, statutory provisions, and materials provided to the court by counsel. I have also readand considered all of the filed exhibits. IV. DISCUSSION [31] In dealing with strict liability offences, the PPSC does not need to prove intent, but it must prove the actus reus beyond areasonable doubt. Actus reus is Latin for “guilty act.” A. Statutory Authority [32] In July and August of 2018, s. 22 of the Fishery (General) Regulations read as follows: Conditions of Licences 22

(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in alicence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular,but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters: (

a) the species of fish and quantities thereof that are permitted to be taken or transported; (

b) the age, sex, stage of development or size of fish that are permitted to be taken or transported; (

c) the waters in which fishing is permitted to be carried out; (

d) the location from which and to which fish is permitted to be transported; (

e) the vessel from which and to which fish is permitted to be transhipped;

(

f) the period during which fishing or transporting fish is permitted to be carried out; (

g) the vessel that is permitted to be used and the persons who are permitted to operate it; (

h) the type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is permitted to be used; (

i) the specific location at which fishing gear is permitted to be set; (

j) the distance to be maintained between fishing gear; (

k) information that the holder of the licence shall report to the Department prior to commencement of a fishing trip with respect to where and when fishing will be carried out, including the method by which, the times at which and the person to whom the report is to be made; (

l) information that the master of the vessel shall report to the Department from sea, including the method by which, the times at which and the person to whom the report is to be made; (

m) the location and times at which landing of fish from the vessel is permitted; (

n) verification by an observer of the weight and species of any fish caught and retained; (

o) the method permitted for landing of fish from the vessel and the method by which the weight of the fish is to be determined; (

p) records that the master of the vessel shall keep of any fishing activity carried out under the licence or of the sale or transporting of fish caught under the licence, including the manner and form in which the records are to be kept, the times at which and the person to whom the records are to be produced and the period for which the records are to be retained; (

q) the type, size and colour of containers to hold or transport fish and the marking of such containers for identification of the source of the fish; (

r) the marking or tagging of fish for identification of the source of the fish; (

s) the segregation of fish by species on board the vessel; (

t) the time within which findings and data obtained as a result of fishing for an experimental or scientific purpose are to be forwarded to the Minister; (

u) the manner in which fish caught for an educational or public display purpose are to be held and transported; (

v) the species and quantities of fish that may be released or transferred under a licence issued under

Part VIII; (

w) the period during which the release or transfer of fish is to be carried out under a licence issued under

Part VIII; (

x) the waters or fish rearing facility into which the fish are to be released or transferred under a licence issued under

Part VIII; (

y) the waters or fish rearing facility from which the fish are to be taken under a licence issued under

Part VIII; (

z) the method and manner of transporting the fish to be released or transferred under a licence issued under

Part VIII; and (z.1) the method of disposing of any water, container or other material used in the transporting of fish under a licence issued under

Part VIII.

(2) The Minister may, for the purposes of the conservation and protection of fish, amend the conditions of a licence.

(3) A notice of any amendment referred to in subsection (2) shall be (

a) sent to the licence holder by registered mail; or (

b) personally delivered to the licence holder by a fishery officer.

(4) An amendment referred to in subsection (2) is effective from the time the licence holder receives the notice referred to in subsection (3).

(5) A notice referred to in subsection (3) forms part of the licence to which it relates and the licence holder shall, on receipt of such a notice, attach the notice to the licence.

(6) Compliance with the Act and the regulations made under the Act is a condition of every licence.

(7) No person carrying out any activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. [ 33 ] In July and August of 2018, s. 7 of the Fisheries Act read as follows: Fishery leases and licences 7

(1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist

by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on. Idem

(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council. [ 34 ] In July and August of 2018, s. 33 of the Fisheries Act read as follows: Unlawful sale or possession 33 No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or the regulations. [ 35 ] In July and August of 2018, s. 43 of the Fisheries Act read as follows: Regulations 43

(1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations (

a) for the proper management and control of the sea-coast and inland fisheries; (

b) respecting the conservation and protection of fish; (

c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish; (

d) respecting the operation of fishing vessels; (

e) respecting the use of fishing gear and equipment; (e.1) respecting the marking, identification and tracking of fishing vessels; (e.2) respecting the designation of persons as observers, their duties and their carriage on board fishing vessels; (

f) respecting the issue, suspension and cancellation of licences and leases; (

g) respecting the terms and conditions under which a licence and lease may be issued; (g.1) respecting any records, books of account or other documents to be kept under this Act and the manner and form in which and the period for which they shall be kept; (g.2) respecting the manner in which records, books of account or other documents shall be produced and information shall be provided under this Act; (

h) respecting the obstruction and pollution of any waters frequented by fish; (

i) respecting the conservation and protection of spawning grounds; (i.01) excluding fisheries from the

definitions Aboriginal , commercial and recreational ; (i.1) for the purposes of paragraph 35(2)(a), prescribing anything that is authorized to be prescribed; (i.2) respecting applications for the authorizations referred to in paragraph 35(2)(

b) or (c); (i.3) prescribing the conditions under which and requirements subject to which persons or entities referred to in paragraph 35(2)(

c) may grant the authorization; (i.4) respecting time limits for issuing authorizations referred to in paragraph 35(2)(

b) or (c), or for refusing to do so; (

j) respecting the export of fish or any part thereof from Canada; (

k) respecting the taking or carrying of fish or any part thereof from one province to any other province; (

l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; (

m) where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (

l) to vary the close time, fishing quota or limit in respect of that area or any portion of that area; (

n) establishing a list of aquatic invasive species; (

o) respecting the control of aquatic invasive species, including regulations (

i) respecting the prevention of the spread of such species,

(ii) respecting the possession of members of such species, and their import, export and transport, (iii) respecting the release of members of such species into Canadian fisheries waters, (iv) respecting the handling of members of such species, or (

v) requiring any person to keep any record, book or other document containing any information relevant to the control of such species, and respecting where, how and how long they are to be kept; and (

p) prescribing anything that is required or authorized by this Act to be prescribed. Regulations — Governor in Council

(2) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s power to make regulations under subsection (3). Amendments to list of aquatic invasive species

(3) The Minister may, by regulation, add species to the list of aquatic invasive species established by regulations made under paragraph (1)(

n) or remove species from that list, and vary the places to which regulations made under paragraph (1)(

o) apply. Statutory Instruments Act

(4) Regulations made under subsection (3) are exempt from

section 3 of the Statutory Instruments Act . Regulations exempting certain Canadian fisheries waters

(5) The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of sections 20, 21 and 35 and subsection 38(4). [ 36 ] In July and August of 2018, s. 78 of the Fisheries Act read as follows: Punishment not otherwise provided for 78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or (

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. B. Attachment of the Conditions of Licence [ 37 ] I am able to -- and do -- give short shrift to the defence raised in relation to the attachment of the Conditions of Licence based upon the legal analysis set out at paragraphs 93 to 104 in 605463 B.C.

Ltd. and the evidence in the present case. [ 38 ] Simply put, the process of being attached is independent of and has nothing to do with the physical attachment of the Conditions of Licence to Salmon Troll Licence 2018 AT 3150 2018 or the physical possession of the Conditions of Licence. As per Edwards , the PPSC does not need to prove that the Conditions of Licence were physically attached to Salmon Troll Licence 2018 AT 3150 2018 or in the physical possession of Levesque as skipper.

Rather, what the PPSC needs to prove is that the Conditions of Licence were attached to Salmon Troll Licence 2018 AT 3150 2018 in such a way that there is no doubt that they relate to Salmon Troll Licence 2018 AT 3150 2018 . In my opinion, the PPSC has succeeded. [ 39 ] I find that the following evidence supports the conclusion, beyond a reasonable doubt, that the Conditions of Licence were attached to Salmon Troll Licence 2018 AT 3150 2018: 1. Exhibit 1, the Affidavit of Robert Edwards , dated July 15, 2019.

In particular, the wording of the Salmon Troll Licence 2018 AT 3150 2018 and the wording of the Conditions of Licence. It is clear that the Conditions of Licence are tied into and form part of the Salmon Troll Licence 2018 AT 3150 2018 conditions of fishing. 2. Exhibit 3, the Affidavit of Sandra MacLean , dated April 11, 2022, which includes: Exhibit “A” - VALIDATION RECORD #009449, signed by Levesque on July 22, 2018. Exhibit “C” - VALIDATION RECORD #009512, signed Levesque on August 8, 2018.

Both Exhibits A and C to Exhibit 3 include certification and acknowledgement by Levesque as follows: I certify that I am authorized to sign on behalf of the above named vessel, and acknowledge the receipt and accuracy of this Validation Record as well as the Terms and Conditions above. In relation to Exhibit A of Exhibit 3, Levesque certified that on July 22, 2018, the Wind Walker had a Current Vessel Remaining Chinook Quota (“Current VRQ”) of 375 Chinook salmon and it had offloaded 357 Chinook salmon, leaving it with an Updated Vessel

Remaining Chinook Quota (“Updated VRQ”) of 18 Chinook salmon. In relation to Exhibit C of Exhibit 3, Levesque certified that on August 8, 2018, the Wind Walker had a Current VRQ of 33 Chinooksalmon and had offloaded 327 Chinook salmon, leaving the Wind Walker with an Updated VRQ of negative 294 Chinook salmon. 3. Exhibit 4, the Affidavit of Martin Huang, dated April 7, 2022, with Fish Slips setting out the various types and numbers of fishoffloaded from the Wind Walker I on June 14, 2018, October 10, 2018, and November 2, 2018. 4.

Exhibit 5, the Affidavit of Jason Alan Parsley, dated April 11, 2022, setting out the paper harvest logs assigned to the Wind Walker I. 5. Exhibit 6, the Affidavit of Peter John Katinic, dated April 12, 2022, confirming the Wind Walker I’s initial TAC of Chinook salmonfor 2018 to be 0.4149%, which equalled 390 Chinook salmon, and that the Wind Walker I had caught 294 too many Chinook salmon. 6. The testimony of Girard regarding her interaction with Levesque during the summer of 2018, including the manner in which thevalidation of the Wind Walker I’s Chinook salmon offload occurred. 7.

The testimony of Katinic as to how the fishery works generally and how conditions of licence and Chinook salmon troll licencesworked together in 2018. C. Is Section 22(7) of the Fishery (General) Regulations is ultra vires [40] The defendants have made an interesting and academically thought-provoking argument that s. 22(7) of the Fishery (General)Regulations is ultra vires and accordingly I should acquit Munro and Levesque on all counts.

I have struggled with the defenceargument, not only because of its simplicity, but also because of the ramifications to fisheries law if the defendants are correct.Nevertheless, after a thorough analysis of the law and the submissions of counsel for the defendants and the PPSC, I am of the opinion,essentially for the reasons set out by counsel for the PPSC, that the defence argument must fail. [41] The starting place for an analysis of the defence argument in the present case is the Supreme Court of Canada decision inFurtney.

The appellants in Furtney were charged with counselling bingo licensees to violate the terms and conditions of their licencescontrary to ss. 22 and 207(3) of the Criminal Code. The provincial terms and conditions for bingo lotteries were set out in provincialorders-in-council, regulations or directions, which, while not published in the Canada or Ontario Gazettes, were provided to each licenseewhen the licence was issued. The appellants were acquitted in the Provincial Court on the ground that ss. 207(1)(

b) and 207(2) ofthe Code were ultra vires Parliament as an improper delegation of criminal law. The

summary conviction appeal court allowed theCrown's appeal, set aside the acquittals, and ordered a new trial. The appellants' appeal to the Ontario Court of Appeal was dismissed.Ultimately, once the case ended up in the Supreme Court of Canada, the Supreme Court of Canada addressed arguments relating to thedelegation of criminal law powers. Of importance in the present case are the Supreme Court of Canada’s treatment of the followingissues: 1. Do sections 207(1)(b), 207(2) and 207(3) of the Criminal Code of Canada, R.S.C., 1985, c.

C-46, create a discretionaryadministrative regulatory regime to govern lotteries, and if so, is it thereby ultra vires Parliament? 2. Are sections 207(1)(b), 207(2) or 207(3) of the Criminal Code of Canada, R.S.C., 1985, c. C-46, or any combination thereof, ultravires Parliament as improper delegation to a provincial body of a matter within the exclusive competence of the Federal Government? 3. Does the non-publication of the terms and conditions imposed under ss. 207(1)(

b) and 207(2) of the Criminal Code of Canada,R.S.C., 1985, c. C-46, infringe or deny the rights guaranteed under ss. 7 or 11(

g) of the Canadian Charter of Rights and Freedoms? If so,is such non-publication a reasonable limit prescribed by law demonstrably justified in a free and democratic society and thereby savedby s. 1 of the Canadian Charter of Rights and Freedoms? [42] Ultimately, the Supreme Court of Canada dismissed the appeal. [43] In responding to the arguments about delegation, the Supreme Court of Canada explained at page 104: The prohibition is against delegation to a legislature. There is no prohibition against delegating to any other body.

The power ofParliament to delegate its legislative powers has been unquestioned, at least since the Reference as to the Validity of the Regulations inRelation to Chemicals, (SCC), [1943] S.C.R. 1. The delegate is, of course, always subordinate in that the delegation canbe circumscribed and withdrawn. The Lieutenant Governor in Council has capacity or status to receive a delegated power: R. v.Wilson (1980), (BC CA), 119 D.L.R. (3d) 558 (B.C.C.A.), at p. 568. He is not subject to any constitutional prohibitionagainst the acceptance of delegated authority.

It may be that in some instances a delegation to the Lieutenant Governor would betantamount to a delegation to a legislature. That question need not be resolved in this case because the essential elements of thesubstantial federal scheme are spelled out in the Code and what was done by the Lieutenant Governor was to make administrativedecisions relating to matters of essentially provincial concern.

These decisions fall within the ambit of the decision in Re Peralta, supra Thus Parliament may delegate legislative authority to bodies other than provincial legislatures, it may incorporate provincial legislationby reference and it may limit the reach of its legislation by a condition, namely the existence of provincial legislation. [44] While not binding on this court, the decision of the Ontario Court of Appeal in Jackson is a persuasive authority in consideringthe issues of delegation and sub-delegation in the Fisheries Act context.

As set out in Jackson, the appellants carried on commercialfishing operations in Lake Erie. In 2007 and 2008, the Ontario Minister of Natural Resources reduced their individual catch quotas forwalleye and yellow perch. The Minister did so because she had accepted the Lake Erie Committee’s recommendations for a reduction inOntario’s share of the total allowable catch for each fish. The appellants brought a judicial review application to challenge the regulatoryregime by which the provincial Minister imposed catch quotas in commercial fishing licences for Lake Erie.

They sought a declarationthat the federal Ontario Fishery Regulations for 1989 and 2007 were ultra vires to the extent that they authorized the provincial Ministerto impose quotas in their licences. The appellants also sought to set aside their walleye and yellow perch quotas for 2007 and 2008. The

Divisional Court dismissed their application. In their appeal, the appellants argued the same three points that were rejected by theDivisional Court: 1. Neither the Fisheries Act nor the regulations to the Fisheries Act passed by the Governor in Council validly delegated to Ontario’sMinister of Natural Resources the authority to attach catch quotas to commercial fishing licences; 2. The Minister of Natural Resources improperly fettered her discretion by accepting the Lake Erie Committee’s annualrecommendations on the total allowable catch for walleye and yellow perch; and 3.

The Minister of Natural Resources exercise of her discretion to allocate individual catch quotas was unreasonable because of herreliance on the Lake Erie Committee’s recommendations. [45] The provisions in issue, as in the present case, included sections 7(1) and 43 of the Fisheries Act, plus the provisions of theOntario Fishery Regulations passed under the authority of s. 43 of the Fisheries Act.

The appellants argued in Jackson that the sub-delegation was invalid because: 1. the Fisheries Act did not specifically authorize the Governor in Council to delegate powers to a provincial Minister; and 2. what was delegated was a legislative power rather than an administrative power. [46] On principles relating to lawful delegation, the Ontario Court of Appeal stated at paragraph 26: [26] Under our constitutional system, Parliament cannot delegate its legislative powers to a provincial legislature. Parliament can,however, delegate its legislative powers to another body: see R. v.

Furtney, (SCC), [1991], 3 S.C.R. 89 at 104. Here,Parliament has not delegated its legislative power in relation to inland fisheries to the provincial legislature. Instead, it has delegated itslegislative power over fisheries to another body, the Governor in Council, which, in turn, has sub-delegated this power to the OntarioMinister of Natural Resources. Thus, the delegation at issue here is not constitutionally impermissible.

The narrow question raised by theappeal is whether the delegation is invalid because it was not carried out properly. [47] With respect to the argument that the failure of the Fisheries Act to have an explicit

section authorizing the sub-delegationrenders the delegation invalid, the Ontario Court of Appeal relied on Reference as to the Validity of the Regulations in Relation toChemicals Enacted by Order in Council and of an Order of the Controller of Chemicals Made Pursuant Thereto, plus Reference Re:Agricultural Products Marketing Act, 1970 (Canada), (SCC), [1978] 2 S.C.R. 1198 (SCC), in reaching its conclusionthat the language of the Fisheries Act supports the conclusion that there is an implicit granting of authority to sub-delegate legislativepowers in the Fisheries Act: [33] Therefore, the absence of specific authority in the Fisheries Act is not fatal to the Governor in Council’s delegation of authority tothe provincial Minister.

As is invariably the case, the issue becomes one of Parliamentary intent.

I agree with Ontario that severalconsiderations show Parliament intended the Governor in Council, in making regulations under s. 43 of the Fisheries Act, to beauthorized to delegate its powers and duties. [34] Under s. 43, the Governor in Council is authorized to make regulations “respecting” a wide range of subjects, including forexample, “respecting the terms and conditions under which a licence and lease may be issued”. “Respecting” is a broad term and, in myview, reflects Parliament’s intention that the Governor in Council have authority to delegate its powers to other bodies. [35] Moreover, s. 43(

l) of the Fisheries Act authorizes the Governor in Council to prescribe the powers and duties of persons employedin the administration and enforcement of the statute. At least implicitly, this provision shows that the Governor in Council can makeregulations delegating its powers and duties. At the same time, s. 43(

l) does not limit the persons who may be prescribed powers andduties. The choice of delegate is that of the Governor in Council.

And the Governor in Council has chosen the provincial Minister.Section 4(1) of OFR 2007 authorizes the provincial Minister to specify a broad array of terms and conditions in commercial fishinglicences, including species quotas on the fish that can be caught. [48] I also rely upon Re Peralta et al., at paragraphs 28 to 62, affirmed by the Supreme Court of Canada in Peralta, and the FederalCourt in Antonsen, at paragraph 45, for the proposition that the Fisheries Act allows for sub-delegation. Per Antonsen: 45.

In my view the conditions which are attached to the licences in this case fit within the Peralta decision. Counsel for the plaintiffs'argument amounts to a requirement that the Minister deal with each licence individually and designate specific landing locations for eachvessel different from the specific landing locations for other vessels. It is argued that this would be an administrative decision andproperly the subject of subdelegation. I am not persuaded that such a degree of detail is required. The licence conditions relate to only thehake fishery.

The licence holders are obliged to choose between landing options and each set of conditions relates to a subset of hakelicence holders. The licence holders apply on an individual basis for an exemption which allows them to deliver fish to foreign licensedprocessing vessels. The power granted to the Governor in Council is framed as a power "respecting" the terms and conditions of alicence.

I am persuaded that the landing conditions on their face are a valid exercise of the authority which has been subdelegated to theMinister. [49] Here in British Columbia, Judge Gulbransen upheld the delegation of the power to make laws in the Fisheries Act context inresponse to an argument similar to the one being made by the defendants in the present case: R. v. Murray, 2005 BCPC 511.

Rather thanread the entire Murray decision into the record, I note that at paragraphs 13 to 15 Judge Gulbransen set out the issues and at paragraphs35 and 36, he made his determination that s. 22(7) of the Fisheries (General) Regulations is not ultra vires the powers delegated to theGovernor in Council in s. 43 of the Fisheries Act: [13] Certainly the intended effect of s. 22(7) is clear – a licence holder who fails to comply with a condition on a licence commits anoffence under s. 78 of the Fisheries Act.

The Act does not state that non-compliance with licence conditions constitutes an offence.Section 43 of the Act does grant power to the Governor in Council to make regulations prescribing various types of conditions which

may be attached to licences. It makes no specific reference, however, to any power to make a regulation which mandates compliancewith licence terms. [14] Neither counsel has been able to refer to any cases in which the validity of s. 22(7) has been argued. There are many publishedcases which involve prosecutions for non-compliance with conditions of fishery licences, but all have proceeded on the basis that thesection was valid. [15] The question must be decided by reference to the principles of statutory construction.

That is, has Parliament, under s. 43 ofthe Fisheries Act, empowered the Governor General in Council to promulgate s. 22(7) of the Regulations, or is it “ultra vires” the powersdelegated under that subsection? ….. [35] The introductory words of

section 43 of the Act clearly provide a very broad scope for the making of regulations.

Section 43(a)also is of broad scope. The Act does not make violation of licence terms an offence but does contemplate proceedings other thansuspension and cancellation. A power to make regulations for the ”proper management and control of a fishery“ plainly includes themaking of a regulation that requires that licence holders comply with its conditions.

Control over a fishery where licensing is central toits regulation and management, also includes exercising authority over the performance by licence holders of the conditions attached to alicence. [36] For the reasons stated above, I find that section 22(7) of the Fisheries (General) Regulations is not “ultra vires” the powersdelegated to the Governor in Council in

section 43 of the Fisheries Act. [50] Ivy Fisheries Ltd., a decision of the Nova Scotia Provincial Court, likewise supports the proposition that s. 22(7) of the Fisheries(General) Regulations is not “ultra vires:” 27 I agree with the Crown that the whole tenor and intent of the Act is to create an enforceable regime for the management of thefisheries. To hold that Parliament intended to set up a scheme for licencing and controlling fishing without a mechanism for meaningfulenforcement, other than licence suspensions, would be to make a laughing-stock of Parliament.

The obvious intent of s. 78 was toprovide for enforcement of all regulations properly enacted under the authority of the Act.

As no one has suggested that the regulationsreferred to are not within the authority granted to issue and set terms and conditions of licences, I find that these regulations are not ultravires and that they are enforceable under s. 78 of the Fisheries Act. [51] Moving to the argument that in the Fisheries Act context, fishing licences and conditions of licence are a statutory instrument orregulation, I am compelled to follow the teachings of Justice Hutchinson in Joe, wherein he found that licences issued under theAboriginal Communal Fishing Licences Regulations, “are not a statutory instrument within the meaning of the Statutory InstrumentsAct.” At paragraphs 9 and 19: [9] I think the case stands for the proposition that licences issued pursuant to regulations, as in the case at bar, are not a statutoryinstrument within the meaning of the Statutory Instruments Act. ….. [19] …I do not find that the licence issued was a regulation requiring notice to those persons likely to be affected.

The learned trialjudge likely did not have the case of R. v. Michael and Michael (1988), (BC CA), 30 B.C.L.R. (2d) 54 (C.A.)brought to his attention; at least he did not mention the case in his reasons. There, concerning s. 11(2) of the Statutory Instruments Act,Lambert J.A., for the court, said at page 63: ... So what constitute reasonable steps must be considered in that context. Abalone fishermen would have had no trouble in finding out,on 23rd December 1985, what the quota for abalone was on that day.

And in my opinion, reasonable steps had been taken to assist themin that task and to bring the varied quota to their attention. [Emphasis in the original] I can find no reason to distinguish the decision in Joe from the present case. [52] I appreciate that the defendants’ argument is that the Governor in Council cannot oblige a fisher to comply with conditions of alicence that are issued by the Minister because, to do so, renders the conditions of licence law and the Minister has not been specificallydelegated that authority or the authority to create offences.

Nevertheless, I find that the Governor in Council can oblige fishers to complywith conditions of licence and that conditions of licence are matters the prosecution must prove at trial. [53] Accordingly, I find that conditions of a licence are not statutory instruments or regulations. It therefore follows that fishinglicences and conditions of licence do not need not be published in order to take effect. Rather, the prosecution must prove fishing licencesand conditions of licence at trial. The result is that reliance on conditions of licence does not amount to a sub-delegation of legislativeauthority.

The provision set out at s. 22(7) of the Fisheries (General) Regulations is not ultra vires of Parliament. The Fisheries Actauthorizes the Minister to issue fishing licences. The Fisheries Act authorizes the Governor in Council to make regulations regardingfishing licence conditions that the Minister can issue.

The Fisheries Act authorizes the Governor in Council to make regulations for theproper management and control of the fisheries, including imposing obligations on fishers that could result in penal liability if fishinglicence conditions are not followed. [54] There has been no sub-delegation in the present case. The Minister acted within its expressly designated power. The Governor inCouncil acted within its expressly designated power. As was the case in Furtney, the licence conditions are not the law, the prosecutionmust prove them at trial.

Finally, it follows that Report No. 75 is not binding authority on this court and given the case law and evidencein the present case, I decline to follow the conclusion reached in Report No. 75.

V. DECISION Count 1: [55] The Wind Walker I was required by its Conditions of Licence to cease fishing for Chinook salmon in 2018 upon catching 390Chinook salmon. The Conditions of Licence were valid and attached to Salmon Troll Licence 2018 AT 3150 2018. Upon offloading itscatch on August 8, 2018, the Wind Walker I had 294 more Chinook salmon than allowed by its VRQ.

The Wind Walker I had failed toacquire all or part of another fishing licence holder’s 2018 Area F TAC of Chinook salmon to allow for the catching of 684 Chinooksalmon. [56] The only rational conclusion to be drawn from the evidence is that the Wind Walker I did not cease fishing for Chinook salmonwhen the maximum of 390 Chinook salmon were caught. Munro, as the vessel owner, and Levesque, as the vessel skipper, thereforecaught fish in contravention of s. 22(7) of the Fishery (General) Regulations, committing an offence contrary to s. 78(

a) of the FisheriesAct. [57] I find both Munro and Levesque guilty in relation to count 1. Count 2: [58] Based on the evidence led at trial and the submissions of counsel, it is unclear to me if the 327 Chinook salmon caught andoffloaded from the Wind Walker I on August 8, 2018, were actually sold to 7 Seas or another buyer. The prosecutor argued as follows: Now, with respect to the sale, the Crown is asking the court to draw an inference. There -- the fish slips weren't filed demonstrating thesale, but I would say on all of the evidence that the -- but that it's the only reasonable inference to be drawn.

It's costly to fish on acommercial vessel. There was a commercial licence. You can see that other fish was sold. This is a high value fishery. Quota waspurchased. The owner of the vessel wasn't the one doing it. It's a very large quantity of fish. Again, the fish slips weren't filed, so thealternative conclusion would be that they kept personally a hundred percent of their fish caught.

I say that's not a conclusion that can besupported in light of all of the surrounding circumstances given the math – [59] With respect, I do not believe that I am able to find on the evidence tendered at trial that the fish offloaded from the WindWalker I on August 8, 2018, were sold. The onus is on the PPSC to prove, beyond a reasonable doubt, that Levesque and/or Munro didsell fish caught in contravention of the Fisheries Act or its regulations contrary to s. 33 of the Fisheries Act.

Although it may be moreprobable than not -- given the commercial fishing licence and quota, combined with 327 Chinook salmon being offloaded from the WindWalker I -- that some or all of the Chinook salmon were sold, there simply is insufficient evidence to meet the more onerous “proofbeyond a reasonable doubt” actus reus requirement. [60] Accordingly, I have a reasonable doubt in relation to count 2, as the prosecution has not proven beyond a reasonable doubt thatbetween August 3, 2018, and August 15, 2018, Munro or Levesque did sell fish caught in contravention of the Fisheries Act or itregulations contrary to s. 33 of the Fisheries Act. [61] I find both Munro and Levesque not guilty in relation to count 2.

Count 3: [62] The Wind Walker I was required by its Conditions of Licence to cease fishing for Chinook salmon in 2018 upon catching 390Chinook salmon. The Conditions of Licence were valid and attached to Salmon Troll Licence 2018 AT 3150 2018. Upon offloading itscatch on August 8, 2018, the Wind Walker I had 294 more Chinook salmon than allowed by its VRQ. The Wind Walker I had notacquired a part of or all of another fishing licence holder’s 2018 Area F TAC of Chinook salmon to allow for the catching in 2018 of 684Chinook salmon.

Munro, as the vessel owner, and Levesque, as the vessel skipper, therefore possessed 294 Chinook salmon on August 8,2018, in contravention of s. 33 of the Fisheries Act, committing an offence contrary to s. 78(

a) of the Fisheries Act. [63] I find both Munro and Levesque guilty in relation to count 3. Count 4: [64] Levesque, as the skipper of the Wind Walker I on July 22 and August 8, 2018, was required by the Conditions of Licence to fillout and remit to the FDMU Fish Slips for the Wind Walker I not later than seven days after landing on July 22 and August 8, 2018. TheConditions of Licence were valid and attached to Salmon Troll Licence 2018 AT 3150 2018. Levesque failed to remit the Fish Slips tothe FDMU not later than seven days after landing, contrary to Section 22(7) of the Fishery (General) Regulations, and did therebycommit an offence contrary to

Section 78(

a) of the Fisheries Act. [65] I find Levesque guilty in relation to count 4. Kienapple Principle [66] I have considered if the Kienapple principle applies to counts 1 and 3. The Kienapple principal is succinctly set out at paragraph17 of R. v. Wigman, (S.C.C.): … it is sufficient to simply reiterate that a two-part test must be met for the Kienapple rule to apply: there must be both a factual andlegal nexus between the charges.

Multiple convictions are only precluded under the Kienapple principle if they arise from the same"cause", "matter", or "delict", and if there is sufficient proximity between the offences charged. This requirement of sufficient proximitybetween offences will only be satisfied if there is no additional and distinguishing element contained in the offence for which aconviction is sought to be precluded by the Kienapple principle.

[ 67 ] Justice Edelmann's decision in R. v. Steer , 2021 BCSC 2404 , and Justice Gray's decision in R. v. Armstrong , 2010 BCSC 1041 , are binding on this court. I am also of the view my analysis of the Kienapple principle as set out in R. v. Munro , 2022 BCPC 104 , is applicable to the present case. Per Armstrong : [65] There is a factual connection between the three charges, which all arose on the same days.

The multiple convictions will be set aside only if there is no additional and distinguishing element contained in the offence sought to be precluded by the Kienapple principle. [66] Possessing fish is a different thing from fishing or setting gear, because not every act of fishing or possessing gear results in the possession of fish.

As a result, count 3 has an additional and distinguishing element, and does not offend the Kienapple principle. [ 68 ] In simple terms, having reached its quota of 390 salmon on or before August 8, 2018, and without the transfer of another fisher’s share of the 2018 Area F TAC of Chinook salmon to the Wind Walker I such as to allow the Wind Walker I to have fished for the extra 294 Chinook salmon, the Wind Walker I should have ceased its fishing after catching an additional 33 Chinook salmon.

The gravamen of the offence in count 1 is the Wind Walker I’s failure to stop fishing for Chinook salmon upon reaching the quota of 390 Chinook salmon. The possession of the excess 294 Chinook salmon is irrelevant to the conviction. [ 69 ] Count 3 is a conviction for possessing the excess 294 Chinook salmon. The gravamen of the offence in count 3 is the possession of the 294 Chinook salmon. Possession of the fish is a different thing from fishing for Chinook salmon after the 390-fish quota had been reached.

As a result, count 3 clearly has an additional and distinguishing element from the offence in count 1. [ 70 ] For the reasons just explained, I am satisfied that counts 1 and 3 are distinct offences, each with distinct elements, such that the Kienapple principle does not apply. VI. CONCLUSION [ 71 ] A guilty verdict is recorded for Munro on each of counts 1 and 3. A guilty verdict is recorded for Levesque on each of counts 1, 3 and 4. __________________________________ The Honourable Judge D.

Patterson Provincial Court of British Columbia CORRIGENDUM Released September 29, 2022 In the Reasons for Judgment dated September 28, 2022, the following changes have been made: [1] The Style of Cause has been updated/corrected to reflect the following: 1. Regina has been amended to Rex ; 2. Counsel for the Defendants: I Yang, as Agent for I. Knapp has been amended to I. Yanq as Agent for C. Harvey ; and 3. The

section of: Date of Hearing: April 21, June 21, and July 21, 2022 has been amended to Dates of Hearing: April 20, 21, June 1, and July 20, 21, 2022. __________________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia