R. v. Vaccher, 2022 BCPC 204

Citation: R. v. Vaccher 2022 BCPC 204 Date: 20221003 File No: 30554-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MICHAEL LAWRENCE VACCHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: C. Coulson Counsel for the Defendant: G. Grewal Place of Hearing: Prince Rupert , B.C. Dates of Hearing: September 6, 8 and 9, 2022 Date of Judgment: October 3, 2022

[ 1 ] Michael Lawrence Vaccher is before the court on an allegation that on September 17, 2020, near the City of Prince Rupert, British Columbia, he did obstruct or hinder fishery officers carrying out their duties, contrary to s. 62 of the Fisheries Act , and did thereby commit an offence pursuant to s. 78(

a) of the Fisheries Act . [ 2 ] The Public Prosecution Service of Canada (the “PPSC”) called three Fisheries Officers as witnesses during the trial.

The defence elected to call no evidence. [ 3 ] The issue for the court to decide is, did Vaccher obstruct or hinder Fisheries Officers carrying out their duties by discarding a sack and the contents of a bucket into the ocean while being approached by Fisheries Officers? [ 4 ] For the following reasons, I have concluded that the PPSC has failed to prove beyond a reasonable doubt that Vaccher committed the offence of obstructing or hindering fishery officers carrying out their duties, contrary to s. 62 of the Fisheries Act .

THE FACTS [ 5 ] There is no legal shellfish harvest on the north coast of British Columbia other than Indigenous harvesting at specifically designated sites. In Hunts Inlet, located approximately 24 kilometres south of Prince Rupert, British Columbia, Fisheries Officers regularly monitor and patrol a specific additional closure measure for shellfish as there is a high health risk due to shellfish contamination. [ 6 ] On September 17, 2020, Fisheries Officers Farrington, Adams and Risto were conducting ocean patrols focusing on persons fishing for or possessing contaminated shellfish in the Hunts Inlet area.

The Fisheries Officers timed their patrol to leave Prince Rupert early in the morning because low tide was around 8:12 a.m., and low tide was prime time for people to unlawfully harvest clams, abalone, and other shellfish. [ 7 ] The Fisheries Officers were in a large marked grey with black accents patrol vessel, just shy of ten meters in length. Farrington was piloting the ship. All three Fisheries Officers were wearing their Fisheries uniforms. The vessel had a siren plus light bars on the roof that flashed blue strobe lights when initiated.

The weather was overcast, with no fog or rain interfering with visibility. [ 8 ] At approximately 9:30 a.m., while investigating an unrelated matter on Porcher Island, Farrington noticed a small aluminum skiff with a single occupant about one kilometre away, travelling in Eddy Pass, between Stephens Island and Porcher Island.

The skiff did not have a cabin on board, meaning there was nothing to impede the occupant of the skiff from being able to see 360 degrees if they were so inclined. [ 9 ] Based upon her knowledge and experience as a Fisheries Officer, Farrington considered low tides ideal for skiffs to access shallow rocky areas where clams and abalone could be harvested, as skiffs are designed to access shallow rocky areas.

Farrington decided to intercept the skiff to check if any fish product was on board the skiff. [ 10 ] When the Fisheries vessel was approximately 500 to 600 meters from the skiff, Farrington activated the flashing blue strobe lights on the Fisheries vessel, throttled down to increase the Fisheries vessel’s speed, and positioned the Fisheries vessel on a course to intercept the skiff, approaching the port side of the skiff. Farrington did not activate the siren on the Fisheries vessel.

Adams and Risto utilized binoculars to view the skiff. [ 11 ] As the Fisheries vessel got to within approximately 100 meters of the skiff, the skiff quickly turned right into a little rocky outcrop in a shallow bay area, where it stopped. Risto described the scene as follows: …a small skiff, which we use that term to refer to anything that is an open vessel, typically aluminum. This vessel was transiting across our bow, so it was generally going south to the -- towards the entrance of Hunt Inlet, which the -- the site is continuously constricting as it becomes more narrower towards the entrance.

So the subject vessel was -- was coming across our bow. At that time, Farrington, I observed her say, "Activate the emergency lights. We'll conduct an inspection." So the emergency lights were activated, and from -- from my observations, at the time I was using binoculars, I observed the vessel transiting, and then I -- I believe the occupant made a slight glance in our direction and then immediately transited away from us. Now, rather than going south, he -- he proceeded west into basically a -- a shallow bay area.

And so we are – are pursuing the vessel. [ 12 ] Neither Farrington nor Adams saw Vaccher glance in the Fisheries vessel's direction. [ 13 ] As the Fisheries vessel approached from the port side, all three Fisheries Officers saw Vaccher, angled with his back towards the Fisheries vessel, pick up a sack or bag from inside the boat and discard it into the ocean on the starboard side. Vaccher then picked a black bucket and dumped the contents overboard into the sea, again on the starboard side.

Vaccher then turned towards the Fisheries vessel and waited for it to come alongside his skiff. [ 14 ] As the Fisheries vessel slowed and approached the skiff, Farrington changed places with Adams. Farrington was the senior officer on board, and she wanted to oversee the interaction with the Vaccher. Farrington requested Vaccher to come alongside the Fisheries vessel. She then asked him what he threw overboard. Vaccher replied, “filleted rockfish.” Farrington was confused about why somebody would be throwing rockfish overboard.

She asked Vaccher why he threw the filleted rockfish overboard, and he said he did not want them anymore. [ 15 ] Farrington remained confused because, on previous occasions, when she observed fish thrown overboard, the fish floats on the surface. None of the Fisheries Officers saw anything floating on the water's surface where Vaccher had discarded the sack and the bucket contents. [ 16 ] Farrington then told Vaccher that she did not see anything floating on the surface and that what he had done was obstruction:

I explained to him that was obstruction because I can't do my job. I have no way to inspect what he was doing or concealing any illegalactivity. I was concerned that it was abalone, based on the tides. So then I advised him from memory, he didn't have to say anything, butanything he did say could be used as evidence. He asked if he was under arrest, and I explained no, and he said he didn't want to sayanything. So I obtained his driver's licence, I obtained his fishing licence, I took photos, I took photos of his boat. There was a fishing rodon board. There was also a black bucket.

I believed it to be the same black bucket that I saw him dumped overboard because there wasno other buckets on the boat. And then that was basically the interaction. He left. [17] Following the interaction with Vaccher, Farrington was frustrated, as she did not know what Vaccher had dumped into the water.Accordingly, along with Adams and Risto, Farrington searched the site for upwards of 45 minutes after Vaccher’s departure, looking forevidence of what Vaccher had dumped into the water. [18] In explaining to the court her frustration, she testified: So then I was more concerned of what went in the water.

I had a GoPro. Unfortunately, the battery life on it was really short, and I triedto stick it in the water so I could maybe see a bag of something or whatever it may be. Couldn't find anything. And the battery died. Sowe spent about 45 minutes trying to get any visual ID of what was on the ocean floor there with no luck. And then I -- I realize after I had done that, I should have taken a DNA sample from the black bucket. I felt that was very importantbecause it would help identify what was in that bucket.

So after we had tried to collect some evidence -- visual evidence of anything thatgot dumped overboard, we went into Hunts Inlet, and I located his skiff on a dock. The black bucket was still in the same spot located right in front of the -- the cab of the steering wheel, and I took three DNA samples.

So I took from our first aidkit, we have sanitary sterilized Q-Tips, so then I took out three, and I kept the bag, the original bag, and I took DNA swabs of the bucket,and I took them back to our office afterwards, and I have -- they're called -- there's DNA Whatman cards, and you just swab them, andthey have a preservative on the card itself that actually -- so you don't need to put it in the freezer or anything to take the sample so I can find out what it was. So that was the extent of what happened that day.

The DNA samples did come back as positive forabalone, which I feel is important, but that's not what we charged the individual with today. [19] Crown counsel did not enter Certificates of Analyst related to the DNA samples Farrington took into evidence. Furthermore, thedefendant did not admit that the DNA samples were positive for abalone. [20] Three days after the incident, Farrington and other Fisheries Officers returned to the area where Vaccher had dumped the sackand the bucket's contents into the sea. Farrington went scuba diving in an attempt to locate the sack.

Although she saw many abalone inthe water, she did not find a sack. THE LAW [21] Actus reus is Latin for “guilty act.” Being a strict liability offence, the PPSC must prove beyond a reasonable doubt the actusreus that Vaccher obstructed or hindered Fishery Officers carrying out their duties, contrary to s. 62 of the Fisheries Act. Furthermore,although the PPSC must prove the actus reus, there is no requirement for the PPSC to prove mens rea, Latin for “guilty mind,” or, inother words, that Vaccher intended to obstruct or hinder the Fisheries Officer.

Finally, if the PPSC successfully proves the actus reus,then the onus shifts to Vaccher on a balance of probabilities to prove that he had a recognized defence at law, such as due diligence, amistaken set of facts, officially induced error, or necessity. [22]

Section 62 of the Fisheries Act states: No person shall obstruct or hinder a fishery officer, a fishery guardian or an inspector who is carrying out duties or functions under thisAct. [23] In R. v. Stickland, (NL PC), Judge Gorman set out a survey of the law concerning obstructing or hindering aFisheries Officer contrary to s. 62 of the Fisheries Act. Beginning in paragraph 44, he summarized the law as follows: [44] I would summarize the elements of the actus reus of

section 62 of the Fisheries Act in the following manner: 1. that the accused obstructed or hindered a fishery officer, a guardian, or an inspector; and 2. that the fishery officer, guardian or inspector was carrying out duties or functions under the Fisheries Act. [45] These functions or duties are not limited to investigation of Fisheries Act violations, but include actions directed toward regulating the fishery. However, this does not allow for searches or inspections without reasonable grounds. [46] For an inspection or search to be in compliance with the Fisheries Act the Guardian or officer must be acting in accordance with

section 49 of the Fisheries Act.

Section 49 limits the power of a guardian or officerto searches or inspections in which there are reasonable grounds to believe that there is anything in the “place” (which includes onboard avessel) to which the Fisheries Act applies. This requires proof of a subjective belief genuinely held which is justifiable on an objectivebasis. [47] If the officer or guardian is conducting an inspection in accordance with

section 49(1) of the Fisheries Act , section 49(1.2) requires that the person being inspected provide “all reasonable assistance.” [48] The obstruction or hindrance can be based on action or inaction. It can include a refusal to provide information if the request for that information is relevant to the administration of the Fisheries Act or regulations and it is information which the officer or guardian may reasonably require. [49] Finally, refusal to provide assistance can constitute the hindrance or obstruction of an officer or guardian and thus an offence contrary to

section 62 of the Fisheries Act . DISCUSSION [ 24 ] Throughout submissions to the court during the voluntariness voir dire and in the trial proper, counsel for the PPSC emphasized that the Fisheries Officers in the present case were acting under the authority of ss. 49 and 61 of the Fisheries Act . [ 25 ] I agree with Judge Gorman as he set out in Stickland that the elements of the actus reus of

section 62 of the Fisheries Act require that: 1. The accused obstructed or hindered a Fishery Officer, a guardian, or an inspector; and 2.

The Fishery Officer, guardian or inspector was carrying out duties or functions under the Fisheries Act . [ 26 ] Leaving aside the second element of the actus reus , that being the question of whether one or all of Farrington, Adams or Risto had a subjective belief, genuinely held which is justifiable on an objective basis, that fish product was on board the skiff as required by s. 49 and thus were carrying out their duties or functions under the Fisheries Act , has the PPSC proven beyond a reasonable doubt that Vaccher was aware of the Fisheries vessel at the time he discarded the sack and dumped the contents of the bucket overboard?

On the whole of the evidence, I conclude that the PPSC has not proven beyond a reasonable doubt that Vaccher was aware of the Fisheries vessel when he dumped the sack and the bucket's contents overboard. [ 27 ] I accept that based upon the observations made by the Fisheries Officers collectively, and Risto in particular, it is more probable than not that Vaccher saw the Fisheries vessel, with its blue strobe lights activated, moving quickly towards him.

In particular, Risto saw through binoculars what he believed was Vaccher taking a slight glance in the Fisheries vessel’s direction, followed by the skiff immediately transitioning away from the Fisheries vessel.

The Fisheries Officers collectively testified that from the time they departed Porcher Island until they pulled up beside the skiff was between five and eight minutes, much of the time with the blue strobe lights activated. [ 28 ] It seems unlikely that Vaccher, while travelling at a 90-degree angle to the Fisheries vessel and without any barriers to his 360- degree view, would not have seen the Fisheries vessel. But it is not impossible. On the whole of the evidence, I cannot be sure that Vaccher did see the Fisheries vessel approaching, mainly because: 1.

Neither Farrington nor Adams saw Vaccher make a slight turn towards the Fisheries vessel before he discarded the sack and contents of the bucket into the sea, 2. Risto did not confidently testify that he saw Vaccher turn towards the Fisheries vessel. Instead, he only believes that he saw Vaccher slightly turn towards the Fisheries vessel, and 3. The PPSC did not prove that the DNA samples from the bucket tested positive for abalone.

Had the DNA samples been in evidence, they would have provided a significant nexus between the Fisheries vessel approaching and Vaccher discarding unlawfully possessed abalone into the water before being intercepted by Fisheries Officers. [ 29 ] As explained by Justice Cromwell in paragraph 39 of R. v.

J.M.H. , 2011 SCC 45 : …the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt. [ 30 ] In all the circumstances, I doubt whether Vaccher knew of the Fisheries vessel when he discarded the sack and the contents of the bucket into the sea.

As such, the PPSC has not proven the actus reus of the offence beyond a reasonable doubt. [ 31 ] In light of my determination that the PPSC has not proven the actus reus of the offence beyond a reasonable doubt, there is no need for me to opine on whether or not the Fisheries Officers were carrying out duties or functions under the Fisheries Act at the time of their interaction with Vaccher. CONCLUSION [ 32 ] I find Vaccher not guilty.

The Honourable Judge D. Patterson Province of British Columbia