R. v. Hudson, 2017 NUCJ 15

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Hudson & Masiliit , 2017 NUCJ 15 Date: 20170310 Docket: 08-13-384 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: George Hudson & Masiliit Corporation -and- Respondent: Labrador Fishermen’s Union Shrimp Company Ltd. ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): Benjamin Flight Counsel (Accused): Alison Crowe & David Hearn Counsel (Respondent): Teresa Haykowsky Location Heard: Iqaluit, Nunavut Date Heard: March 10, 2017 Matters: Violations under Fisheries Act , RSC, 1985 REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This matter involves a prosecution of a captain of a fishing vessel and the corporate owner of the fishing vessel (hereinafter referred to as Hudson and Masiliit) for violations under the Fisheries Act , RSC, 1985, c F-14 [ Fisheries Act ]. Hudson and Masiliit seek an order compelling the production of records in the possession of the Department of Fisheries and Oceans (DFO). II. RECORDS SOUGHT [ 2 ] The fishing vessel in question (the Suvak) was fishing for turbot in October of 2012 in Davis Strait, between Nunavut and Greenland.

Commercial fishing is a highly regulated industry overseen by the DFO. [ 3 ] The DFO runs an At Sea Observer (ASO) Program, which involves having an independent observer on board vessels to observe, record, and report information to the DFO. The nature of the information collected is wide-ranging and is used for a variety of purposes, from biological research to regulation and compliance. [ 4 ] There were more vessels than just the Suvak fishing for Turbot in Davis Strait in the 2012 fishing season and in prior fishing seasons.

It is not clear whether all or only some of the fishing vessels were required to have ASOs on board in 2012. The ASOs are employed by third parties; however, they are licensed by the DFO and are required to report to the DFO in the manner prescribed by the DFO. The ASOs are independent of the fishing vessels. [ 5 ] This application initially sought all of the records in relation to all fishing vessels compiled by the ASOs over the three years prior to the date of charge. By the time the application was heard, the records sought were narrowed to those which disclose the location of the vessels. III.

BACKGROUND [ 6 ] Hudson and Masiliit are charged with fishing outside of Canadian waters. [ 7 ] Suvak is a fishing vessel which operates in the Davis Strait and it is alleged that on October 10-20, 2012, the vessel was fishing east of the international boundary, in waters that are within Greenland’s fishing area, contrary to s. 78 of the Fisheries Act . [ 8 ] The Defence submits that because of the particular conditions of the Davis Strait—those being a narrow fishing channel, unpredictable and strong currents, and an irregular international fishing boundary—it is not unusual for fishing nets to drift after they have been set.

In some instances this drifting takes the nets outside of Canadian waters. [ 9 ] The Defence will be relying on three arguments at trial: 1. Officially induced error;

2. Due diligence; and 3. That dragging in nets does not constitute “fishing.” [10] In an earlier application (Hudson and Masiliit #1) the defendants made an application for disclosure of records in the possession ofthe DFO. The application was denied and direction was given that application must be made on notice to third parties with an interest inthe documents, as set out in R v O’Connor (SCC), [1995] 4 SCR 411, 130 DLR (4th) 235 [O’Connor]. [11] Notice was provided and the Labrador Fishermen’s Union Shrimp Co.

Ltd. (Fishermen’s Union), a corporate owner of one of thevessels for which records are sought, opposed the application. IV. ANALYSIS [12] The analytical regime to be applied is set out by the Supreme Court of Canada in O’Connor. O’Connor sets out a two-stage test tobe applied: 1. If the records sought are “likely relevant”, then they are to be produced to the court. 2. The court reviews the records and determines if there should be production of the records.

For the purposes of this matter, thefollowing factors are relevant to a consideration of whether the documents should be produced: • Are the records actually relevant; • The extent to which the records are necessary for full answer and defence; and • The nature and extent of a reasonable expectation of privacy in the records. [13] In Hudson and Masiliit #1, the Court gave some consideration to the question of whether the records sought met the “likelyrelevant” test; however, the Court did not have the benefit of submissions from any of the parties with an interest in the records.

TheCourt now has the benefit of those submissions, so it is appropriate to revisit that threshold question. [14] While the onus is on the applicant to satisfy the Court that the records sought are “likely relevant”, the law is clear: this is not anonerous burden and should not be a difficult one for the applicant to meet (O’Connor, para 24). [15] Counsel for the Fishermen’s Union submitted that the records sought do not meet the “likely relevant” test.

Counsel submits thatthe applicants are on nothing more than a fishing expedition and, accordingly, an order for production to the Court should not be made. [16] In my view the applicants in this matter are not on a “fishing expedition”. The applicants are not speculating as to what informationthe records will disclose in the hopes that some of it may be beneficial to the Defence.

They know both the nature of the documentssought (records as to the location of the fishing vessels) and have a reasonable expectation of the information those documents willreveal (that on occasion the vessels were over the international fishing boundary). [17] The issue to be decided is whether this particular information, which is known to be in the records, is likely relevant to an issue attrial.

[ 18 ] In Hudson and Masiliit #1 , the Court found that the records were likely relevant to a defence of due diligence as the records could provide evidence of industry practice, which could inform the trial Court’s finding as to the industry standard and the legal standard to be met. Support for this is found in the case law. [ 19 ] In R v Rideout , 2014 NLCA 29 , 2014 CarswellNfld 229 , the court was dealing with a violation of a fishing licence. The defendant was found to have retained whelk (a type of fish) less than 63 millimetres in length, in violation of his licence.

The defendant testified that he used a measuring system that was commonly used by all the province’s fishers. The trial court accepted this measuring system as being the industry standard but found that it was not relevant in determining the legal standard. The court of appeal overturned the conviction and remitted the matter for trial.

The case supports the proposition that while industry practice or standard may not be the equivalent of the legal standard of due diligence, it is relevant evidence on the issue. [ 20 ] In R v Harris (2001), 198 Nfld & PEIR 324 , 2001 CarswellNfld 62 , the defendant had exceeded the allowable “by-catch” of cod. Prior to being notified that he had exceeded the allowable by-catch, he dragged in nets that had been previously set. He was charged with continuing to fish after having exceeded the allowable by-catch limit.

In assessing the defence of due diligence, the court considered the common practices of the industry. [ 21 ] Certainly there are cases where evidence of industry practice was found to not be relevant at trial in the court’s determination of the legal standard of due diligence.

However, the point to be taken from the cases is that the evidence is generally admissible, although it may be given varying weight depending on the particular circumstances of the case. [ 22 ] The Fishermen’s Union also submitted that there are privacy interests in the records that militate against production. [ 23 ] It is submitted that if the records disclose that other fishing vessels, not party to this prosecution, were found to be fishing beyond the international boundary, they could then be subject to prosecution. [ 24 ] It is unlikely that this would occur given the time limitation for the commencement of a prosecution set out in the legislation.

However, even if such were the case, it is not for the Court to protect parties from legitimate prosecutions. [ 25 ] The Fishermen’s Union is not able to articulate any commercial interests which might be compromised by the disclosure of the records. [ 26 ] In my view, the submissions of the Fishermen’s Union did not advance any further arguments that would lead the Court to a different decision than that reached in Hudson and Masiliit #1 . V. CONCLUSION [ 27 ] I find that the records are to be disclosed to the Court for review and possible further disclosure to the applicants.

The records to be disclosed are those gathered by the ASOs in relation to the location of the Suvak and the three vessels which were provided notice of these proceedings for the three years prior and the year of the date of the charge. Dated at the City of Iqaluit this 21 st day of August, 2017 ___________________

Justice S. Cooper Nunavut Court of Justice