R. v. Douglas et al - Ruling on No Evidence Motion Date:, 2003 BCPC 126

Citation: R. v. Douglas et al - Ruling on No Evidence Motion Date: 20030401 2003 BCPC 0126 File No: 15347-1; 15347- C2 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARWIN JASON DOUGLAS ROBERT WAYNE DOUGLAS KIRBY EDWIN HOURIE FRANCESCA CHEY-ANN LEO LEWIS TED NEWMAN and DWAYNE OLIVER MIKE RULING ON NO EVIDENCE MOTION OF THE HONOURABLE JUDGE W.A. YOUNG Counsel for the Crown: F. Jensen Counsel for the Defence: H. Braker Place of Hearing: Chilliwack, B.C. Date of Hearing: March 26, 2003 Date of Judgment: April 1, 2003 Place of Judgment: Hope, B.C.

Application [ 1 ] At the close of the Crown's case on the factual portion of the trial, three of the defendants, Kirby Edwin Hourie, Robert Wayne Douglas, and Francesca Chey-Ann Leo, have made a no evidence motion with respect to counts l, 2, 5, 6, 7 and 8 on the information. The defendants argue there is no evidence with respect to either fishing, or possession of fish. The Crown argues there is evidence, both direct and circumstantial, with respect to fishing and possession. [ 2 ] I intend to review the evidence, and argument, with respect to each of the three defendants.

Francesca Leo [ 3 ] On August 29 th , 2001, Officers Ray and Levitt attended an area north of Yale, commonly referred to as five mile road. This particular area is accessed by turning off the Trans Canada Highway, crossing the railway tracks, and proceeding up the old highway. The distance to this location from the Trans Canada Highway is approximately one, to one and a half kilometres A trail winds from the old highway, down to the Fraser River. At 10:19 am, the officers observed a vehicle on the side of the road. Ms. Leo was standing at the open trunk of the vehicle.

Officer Ray observed several burlap sacks, which contained fish, in the trunk of vehicle. Officer Ray had a conversation with Ms. Leo as follows: Q: "How are you? Are you fishing?" A: "Yes" Q: "Do you have any legal justification to be fishing?" A: "I am Cheam" Ms. Leo then produced a document, which was a Cheam band fishery notice. Officer Ray then advised her she was under investigation for unlawful possession of fish. He then cautioned and chartered her.

Q: "Do you want to call a lawyer?" A: "No, I will talk to June." (referring to Chief June Quipp) Officer Ray explained the warning and Charter in layman's terms. He then continued with the conversation. Q: "How long have you been fishing?" A: "Seven and a half hours."

Q: "How many fish do you have?" A: "35 to 40 sockeye and one spring." Q: "Was it your gill net?" A: "Yes" Q: "Do you have any legal justification to be fishing here during a closed time?" A: "June will get a hold of you." [ 4 ] After this conversation, Officer Ray walked to the trail, leading down to the fishing site, and observed two or three other people coming up the trail. In particular, he observed a man carrying a bag, which he assumed contained fish. Ms. Leo told Officer Ray that this man was her friend.

Officer Ray was aware of the safety protocol between the Cheam First Nation, and the Department of Fisheries and Oceans, for the 2001 salmon fishing season (exhibit 7A). [ 5 ] Officer Ray observed the fish in the trunk to be sockeye salmon. Particular markings on the fish told him they were caught by means of a gill net. He was not able to count the fish in the trunk. He did not see a gill net in the vehicle. However, it is clear Officer Ray chose not to search the vehicle, nor to seize the fish, given the protocol in place between the DFO and the Cheam. Furthermore, Ms.

Leo was not the registered owner of the vehicle. [ 6 ] Defence counsel argues that Officer Ray could easily have asked Ms. Leo to whom the fish in the trunk of the car belonged. He argues there is no evidence as to which fish Ms. Leo was talking about, when she mentioned 35 to 40. He argues the man on the trail was in possession of fish. However, I note there is no direct evidence of fish being in the sack. Counsel further argues there is no evidence tying Ms. Leo to that particular vehicle, in which the fish were located. In conclusion, he argues there is no evidence Ms. Leo was in possession of the fish.

Kirby Hourie [ 7 ] On August 2 nd , 2001, at 10:30 am, Officers Levitt and Woodcox observed Kirby Hourie, with Darwin Douglas, at the Cheam beach, standing next to a boat. The photos of the scene show a boat and motor, adjacent to the beach. Darwin Douglas is in the process of removing a gill net from the boat. There is a plastic tote inside the boat. A fish tail can be observed in the tote. As well, a fish can be observed in the net being held by Darwin Douglas. A truck belonging to Kirby Hourie can be seen in one photo. A boat trailer is also in the photo. [ 8 ] Officer Levitt observed Mr.

Hourie assisting Darwin Douglas in removing the fish from the net. He also observed Mr. Hourie folding the fish net. The boat was not tied to the beach. Officer Levitt has seen Mr. Hourie in that particular boat on several other occasions. Mr. Douglas was reluctant to allow the fisheries officers to approach the shore in order to take measurements of the net. Accordingly, Officer Levitt was not able to get a fix on the number of fish in the tubs. Officer Levitt followed the safety protocol in not approaching closer.

Officer Levitt testified that he observed both defendants removing the net from the boat, and taking fish out of the net. He observed Mr. Hourie to be wearing fishing gear. [ 9 ] Officer Woodcox has also seen Mr. Hourie use this particular boat on other occasions. On August 2 nd , 2001, Officer Woodcox observed the two defendants removing sockeye salmon from the gill net, which was in the boat. He observed the defendants to place the fish into the tote on the beach. Neither of the officers saw the defendants in the boat on August 2 nd .

Officer Woodcox spoke with Darwin Douglas about measuring the net, and counting the fish. However, Mr. Douglas told the officers they had enough evidence. [ 10 ] Defence counsel argues there is no evidence that Mr. Hourie was in possession of fish, or was fishing in the waters of the Fraser River. Counsel argues that the accused's handling of the fish is not evidence of possession. He points to Officer Woodcox's evidence that others were on the beach at the time. He submits there is no evidence as to who in fact caught the fish. There is no evidence that Mr. Hourie was in the boat.

Furthermore, counsel submits Mr Hourie was not wearing a life jacket, as was being worn by Mr. Douglas. Robert Wayne Douglas - August 5 th , 200l incident [ 11 ] Mr. Robert Douglas is charged with fishing without the authority of a license on August 5 th , 2001, as well as fishing without the authority of a license, and possession of fish, caught in contravention of the Fisheries Act and Regulations, on August 30 th , 2001. Defence counsel submits there is no evidence Mr.

Douglas was either fishing, or in possession of fish, on either occasion. [ 12 ] On August 5 th , 2001, at 9 pm, Officers Powers and Levitt observed Mr. Robert Douglas, and Ms. Sowle, in an open boat, with a motor. The boat is called the Misty River. Officer Powers has seen Mr. Douglas in that particular boat on other occasions. The fisheries officers chose to keep a safe distance of 40 feet between them, and Mr. Douglas and Ms. Sowle (hereinafter referred to in this part as the defendants). Officer Powers observed the boat to be close to the south shore of the Fraser River.

He observed the defendants checking a set gill net. The defendants were not actually pulling the net into the boat. Officer Powers was also aware of the safety protocol with the Cheam. According to Officer Powers, they were not able to get close enough to the boat to observe any fish in it. [ 13 ] Officer Levitt testified that both defendants were "moving along the net". The net was attached to the south side of the river. Officer Levitt described the boat being in the mid

section of the net. The defendants were not under power, but rather were using the net secured to the shore in order to keep them in place. Officer Levitt described the defendants as removing debris and fish as they encountered them in the net. Officer Levitt recalled the defendants removing at least one fish from the net. Officer Levitt was not able to say what sort of fish was removed, nor which of the two defendants actually removed the fish from the net. Officer Levitt observed both defendants holding onto the float line and the lead line of the net, in order to check for fish. He described the defendants as moving from one end of the net to the other

[14] Defence counsel argues there is no evidence that Mr. Robert Douglas was fishing on August 5th, 2001. At best, he argues, thedefendant was only seen handling a fish net. He argues that checking the net for debris is not evidence of fishing. Furthermore, there isno evidence as to who owned the net. Robert Wayne Douglas - August 30th, 2001 incident [15] Defence counsel argues there is no evidence that Robert Wayne Douglas (hereinafter referred to in this part as Mr. Douglas) was either fishing, or in possession of fish, on August 30th, 2001. Counsel argues that Mr.

Douglas was merely operating the boat during therelevant time, and accordingly, there is no evidence he was in possession of fish. Ms. Sowle was the one observed throwing out the net.Counsel argues there is no evidence that Mr. Douglas either touched the fish, or handled the net in any way. Counsel argues that thefisheries officers could well have asked the defendant to whom the net and fish belonged. Accordingly, counsel argues there is noevidence that the defendant was fishing or in possession of fish. [16] On August 30th, 2001, Officers Clift, Ray and Levitt were on a patrol vessel near the Cheam beach area.

The officers stopped forlunch below the Agassiz bridge. A few minutes later, Mr. Douglas came to talk with the officers. Ms. Sowlie, and two youths, were inthe vessel with Mr. Douglas. Officer Clift had a conversation with Mr. Douglas, as follows: Q: "I asked him if he was going fishing. A: "Yes" Officer Clift then advised him that the river was closed for fishing. Mr. Douglas replied that: "Yeah, he knew." [17] Mr. Douglas then headed back upstream. About half an hour later, the officers observed the same vessel leaving the Cheam beach,heading upstream to an area which is a gravel bar.

The officers followed the boat. They observed Mr. Douglas to operate the boat. Ms.Sowle paid out the net, which was a drift net. The boat then travelled downstream, drifting with the net to the end of the bar. The bar ison the north side of the river. Mr. Douglas maintained the vessel so the net was allowed to float freely down the channel. The net hadcorks to keep it on the surface of the water, and a blue jug at the far end of the net away from the boat. This drift net fishing went on forapproximately 15 minutes. Mr. Douglas operated the boat so as to maintain tension on the net. Ms.

Sowle, and one other person, pulledin the net. Mr. Douglas continued to steer the boat. Mr. Douglas then drove the boat to the Cheam beach. The officers attended the beachto collect evidence, and to take photos, pursuant to the safety protocol with the Cheam Band. [18] Officer Ray testified the drift net fishing lasted approximately 20 minutes. He observed a number of fish being caught in the net. Hecounted approximately 50 fish. Officer Ray testified that Mr. Douglas ran the boat the entire time. According to Officer Levitt, Mr.Douglas operated the boat in reverse, so the net could be paid out across the river.

The operator of the boat must manoeuvre the net inorder to keep it stretched out across the river. Officer Levitt observed Mr. Douglas at the steering wheel of the boat. The photographsclearly depict Mr. Douglas at the wheel, the actions of the others in the boat, and the net containing salmon. The Law No evidence motion [19] A trial judge is not entitled to weigh the evidence on a no evidence motion, nor to consider the quality of the evidence, even wherethere are frailties in that evidence.

The trial judge's function on a no evidence motion is to determine whether there is any evidence,direct or indirect, upon which a jury properly instructed, could reasonably convict. In other words, if the totality of the evidence adducedin the Crown's case, taking a best case scenario, admits of a reasonable inference supporting a finding of guilt, here with respect topossession and fishing, I cannot consider a verdict of not guilty at this point in the trial. [20] The Crown submits there is both direct, and indirect or circumstantial evidence, with respect to the elements of possession andfishing. [21] Mr.

Justice David Watt, in his text, Manual of Criminal Evidence, 2002, at page 44, defines circumstantial evidence as follows: " Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitnessto the material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact inissue. It is for the trial judge to determine whether circumstantial evidence is relevant." [22] In the analysis of this no evidence motion, it would assist to turn to the definition

section of possession found in the Criminal Code,as well as the parties to the offence section. I have also had the opportunity of reviewing the case authorities referred to by counsel.Those decisions, some of which deal with what activities constitute fishing, are the following: 1. Frederick Gerring Jr. (The) v. Canada (1897), (SCC), 27 S.C.R. 2712. R. v. Weir (Nfld. S.C.)

(1993) N.J. No. 2293. R. v. Morash (N.S.C.A.)

(1994) N.S.J. No 534. R. v. Aaron Joseph Edgar, BCPC 02325. R v. Aleck et al, PCBC 112600-2-TC (Surrey registry) Possession and parties to an offence [23] There is no definition of possession found in the Fisheries Act.

Section 33 of the Act sets out the following: 33. No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or theregulations.

[24] The Criminal Code definition provides some assistance in this regard. Section 4(3) of the Criminal Code defines possession asfollows: 4 (3). For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him,for the use or benefit of himself or of another person; and (

b) where one of two or more persons, with the knowledge and consent of the rest,has anything in his custody or possession, it shall be deemed to be in the custody andpossession of each and all of them. As set out in R v. Beaver (1957) (SCC), S.C.R. 531, to constitute possession, for the purposes of the criminal law, theremust be both knowledge and some act of control. [25] An accused may be found in possession as a party by virtue of

section 21 of the Criminal Code.

Section 21 of the Code states thefollowing: 21(1). Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist eachother therein and any one of them, in carrying out the common purpose, commits an offence, each of them whoknew or ought to have known that the commission of the offence would be a probable consequence of carryingout the common purpose is a party to that offence. [26] It is clear that both sections 4(3) and 21 of the Code assist in the analysis of whether or not there is any evidence of possessionand/or fishing, with respect to Mr. Hourie, Ms. Leo and Mr. Robert Wayne Douglas. I also note that in R. v. Arthur Alleck et al. (supra),MacDonald PCJ found that

section 21 does apply in a Fisheries Act prosecution. Fishing [27] Fishing is defined in the Fisheries Act as "fishing for, catching or attempting to catch fish by any method". [28] Counsel have referred to decisions which speak of the "continuum of fishing". In a passage referred to with approval in severaldecisions, Sedgewick J., speaking for the majority of the Supreme Court of Canada, in Frederick Gerring Jr. (The) v.

Canada (supra),stated the following, at pp. 280-281: "The question is whether this vessel was "fishing," when, for two hours or more, her crew were baling, orscooping out, by means of a dip-net, from the area of water surrounded by the seine, the one hundred and thirtybarrels (more or less) or mackerel which they finally secured. The act of fishing is a pursuit consisting, not of asingle but of many acts according to the nature of the fishing. It is not the isolated act alone either ofsurrounding the fish by the net, or by taking them out of the water and obtaining manual custody of them.

It is acontinuous process beginning from the time when the preliminary preparations are being made for the taking ofthe fish and extending down to the moment when they are finally reduced to actual and certain possession. That,at least is the idea of what "fishing," according to the ordinary acceptation of the word, means, and that, I think,is the meaning which we must give to the word in the statutes and treaty." [29] In R. v.

Morash, Hallett J.A. of the Nova Scotia Court of Appeal, having considered the case of Frederick Gerring Jr., found thefollowing at paragraph 7: "A person is engaged in fishing when he sets or retrieves a gill net." [30] In R. v. Arthur Alleck, MacDonald PCJ found there was no evidence that one of the defendants, Gary Peters, was fishing, nor wasthere evidence of any nets or fish being in his boat, nor any evidence of lines being tended by anyone in his boat. Accordingly, in thatcase, the court found there was no direct evidence of fishing. Here, the Crown argues that case can be distinguished.

Analysis [31] Having considered the totality of the evidence with respect to Kirby Hourie, Francesca Leo and Robert Wayne Douglas, inconjunction with the above stated law, I am satisfied there is some evidence of possession and/or fishing, either direct or indirect, uponwhich a jury properly instructed, could return a verdict of guilty on each of the disputed counts. Accordingly, the no evidence motion isdismissed with respect to Mr. Hourie on counts l and 2, with respect to Robert Douglas on count 5, with respect to Ms. Leo on count 6,and lastly, with respect to Robert Douglas on counts 7 and 8.

_______________________ Wendy A. Young, P.C.J.