Her Majesty the Queen - v. -, 2014 SKPC 181

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 181 Date: October 21, 2014 Ticket #: 7457912 Location: Spiritwood _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jake Pick Appearing: Mr. M. Pich é For the Crown Self For the Accused JUDGMENT D. O ’ HANLON , J Charge [ 1 ] Mr. Pick is charged that he did on March 29, 2014, at Turtle Lake, Saskatchewan, angle with more than two lines in ice covered water, to wit: four lines, contrary to s. 20(

b) of The Fisheries Act , 1994 and The Fisheries Regulations , s. 16.1. Facts

[ 2 ] On March 29, 2014, a Conservation Officer was checking ice fishermen on Turtle Lake, Saskatchewan. She came upon a group of ice fishermen/women and found the accused with two lines of his own in a hole or holes in the ice. His daughter, approximately three years of age, also had two fishing lines in the water through holes in the ice. They were utilising “tip ups”. These are rigs that are put over the hole with the fishing line and hook going down into the water and a spring loaded release on top of the rig.

If a fish bites the hook in the water, the spring loaded release on top of the rigs goes up and signals that there is a fish on the line. [ 3 ] The officer charged Jake Pick with the above offence because his three year old daughter was not able to set, maintain, watch and retrieve fish on her own lines. [ 4 ] There were four adults and four children in Mr. Pick’s group. Mr. Pick and one other adult both had fishing licences. Two other adults did not have fishing licences and were not fishing. In speaking with Mr.

Pick the officer asked him if his three year old daughter was capable of setting, watching, maintaining and retrieving fish on her two hooks in the ice. The accused didn’t think that she could. The officer also testified that the hooks in the water were using three to five inch smelt as bait, she did not believe that the child would be able to bait the hook herself. Given the age of the child, this is self evident. [ 5 ] The officer conceded that persons under 16 years of age do not require a fishing licence. [ 6 ] It is important to note at this time that the

section under which Mr. Pick is charged, states that “no person, while angling, shall use more than two fishing lines in ice-covered waters.” Issue [ 7 ] The only issue to be determined is whether or not the accused’s three year old daughter was legally fishing. [ 8 ] The facts are not in dispute. Law [ 9 ] Saskatchewan Fisheries Regulations , 1995 SOR/95-233 : 4(1) Subject to subsection 3, no person shall fish except under the authority of a licence issued under (2) or under The Fisheries Act (Saskatchewan) 1994 . [ 10 ] The Fisheries Act (Saskatchewan), 1994 , SS 1994, c F-16.1, s. 20(1)(

b) defines “angling” as follows: (

i) fishing by means of a line and hook or rod, line and hook; (ii) bow fishing; or (iii) underwater spear fishing.

[11] The Fisheries Regulations, c F-16.1 Reg 1 state that: 11(1) Subject to subsection 1.1, no person 16 years of age or older shall angle in Saskatchewan waters unless that person holds anangling licence. 20 No person, while angling, shall: (

b) use more than two fishing lines in ice-covered waters. Analysis [12] There is nothing in the Saskatchewan statutes or regulations requiring minors to have a certain level of skill or ability, in orderto participate in fishing. Similarly, none of the provinces across Canada affix a minimum age or skill level as a requirement for fishing. Inall of the provinces, children under 16 years of age are not required to be licenced to fish.

This demonstrates that the legislatures haveturned their minds to the issue of children fishing, and have not deemed it necessary to make detailed regulations regarding minimumlevels of involvement by children. Nor do the regulations speak to the minimum level of involvement required of adults. In other words,disabled adults, or indeed disabled children, are allowed to fish with the assistance of able-bodied adults or children. [13] Children are not exempted from regulations regarding quotas or prohibited methods of fishing in any province.

Theregulations in Quebec, Manitoba, Ontario, New Brunswick, Nova Scotia, British Columbia and Newfoundland and Labrador place somelimits on non-resident or species-specific fishing by minors. Generally these restrictions require the catch of the minors to be included inthe quota of the licenced supervising adult. This shows that the legislatures are alive to the fact of children fishing and have either takensteps deemed necessary to limit their catch numbers or they have chosen not to.

Saskatchewan has placed no such restrictions onchildren. [14] Ontario and Newfoundland have enacted regulations which specify to some degree the level of involvement and attentionrequired of anglers when ice fishing. In Ontario, an angler on water or ice need not hold the fishing rod in hand, but must ensure that it is“closely attended”. In Newfoundland and Labrador, the regulations require that ice fishing lines be “closely and constantly” attended.

Additionally, in Ontario, a person who is angling through the ice must be at least 60 metres from the hole in the ice from which they areangling and must maintain a clear and unobstructed view of the line which they are angling with. In New Brunswick the definition of“angling” also includes “attempt to fish”. No such specifications are part of the legislative scheme in Saskatchewan. [15] British Columbia and Alberta have regulations which actively encourage family fishing by exempting all individuals fromlicencing requirements on specific weekends.

In British Columbia, it is the weekend of Father’s Day, and in Alberta, it is the weekendof Family Day. [16] Newfoundland and Labrador have a regulation that allows disabled people to fish with the assistance of a “designated angler”who must keep within 100 metres of the designated angler unless helping to land a fish. No mention is made of the extent of skill orinvolvement required of the disabled angler, or the extent of disability which disqualifies a disabled person from angling. [17] As stated earlier, there is very little case law to assist with this issue.

The term “angling” was judicially considered in R vHarding, (NL CA), 150 NFLD and PEI R 147, 470 APR 147, but that was in the context of debunking a defenceargument that angling did not encompass the practice of jigging. Jigging is when a fish is snagged by a barbed hook on any part of itsbody. Similarly, a youth in R v H.(N.G.) (1994), (NL SC), 114 NFLD and PEI R 340, 356 APR 340, was acquittedon appeal of unlawfully jigging. He was an inexperienced angler, fishing with his father when he cast the line and landed the fishhimself.

[ 18 ] In R v Paulson , 2010 SKPC 153 , 364 Sask R 149, the adult accused was suspected of fishing with a revoked licence. At para. 12 the judge refers to a trip the accused took with his children. The trial judge simply stated that the children did not require licences and had none. The issue of the extent of participation or skill level required to be considered an angler did not arise in that case. [ 19 ] The Defendant tendered one exhibit in the trial of this matter. It is the “Saskatchewan Anglers Guide 2014”. This is a publication of the Government of Saskatchewan which provides information on fishing and a

summary of relevant regulations for the general public. It is notable that the cover picture chosen for this publication is of what appears to be a father baiting or tying a hook on the fishing rod and line held by his young daughter. [ 20 ] On the inside cover of the same publication, the Minister’s message from the Honourable Ken Cheveldayoff, Minister of the Environment, concludes by stating: Please take the opportunity to get out with your friends and family this season and enjoy our province’s many fishing opportunities.

At the top of that page, it is indicated that Saskatchewan has two free fishing weekends: July 12 and 13, 2014 and February 14, 15, 16, 2015. Conclusion [ 21 ] The law in Saskatchewan, and indeed all of the other provinces, does not mandate a minimum age requirement for fishing. Nor does it mandate specific skill levels or abilities required by a person engaged in fishing.

Consequently, just because an individual is three years of age, and does not have the ability to do everything required when fishing, it does not mean that he or she cannot legally fish. [ 22 ] I find the accused not guilty of the charge. ___________________________ D. O’Hanlon, J