R. v. Guion, 2019 BCPC 42

Citation: R. v. Guion 2019 BCPC 42 Date: 20190312 File No: 173564 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARIO PETER GUION REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: M. Adams Appearing on his own behalf Mr. Guion Place of Hearing: Victoria , B.C. Date of Hearing: March 11, 2019 Date of Judgment: March 12, 2019 The Issues

[ 1 ] Mr. Guion is charged with being on board a vessel engaged in commercial fishing at a time when Mr. Guion was not registered, as required by

section 25 of the Pacific Fishery Regulations, 1993 SOR 93/54 (“the Regulations ”). Mr. Guion says that: a. He believed that he was registered on the day in question. b. He did not believe that he was required to be registered on the day in question because he was not actively participating in the fishery on that day. Rather, he was present only as an observer, advisor and interpreter. The Statutes [ 2 ]

Section 25 of the Regulations provides (underlining added): No person who is sixteen years of age or older shall engage in commercial fishing or be on board a vessel that is being used in commercial fishing unless that person is registered.

Section 1 of the Regulations provides that “… registered means registered with the Department pursuant to

section 19 …”.

Section 19 provides that the Minister may issue to a person a fisher’s registration card, and that, upon issuance of the card, the person is “… deemed to be registered with the Department …”.

Section 78 of the Fisheries Act RSC 1985, c F-14 provides: Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of … 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 ….

Section 78.6 of the Fisheries Act provides (underlining added): No person shall be convicted of an offence under this Act if the person establishes that a person: a. exercised all due diligence to prevent the commission of the offence; or b. reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent. The Facts [ 3 ] The evidence establishes the following facts beyond a reasonable doubt. On March 14, 2018: a. Mr. Guion was 53 years of age. b. Mr. Guion was on board the fishing vessel Quicksilver Girl . c. While Mr.

Guion was on board, the Quicksilver Girl was engaged in commercial fishing for crab in Georgia Straight, between Vancouver Island and the British Columbia mainland. d. Mr. Guion was not registered with the Department under

section 19 of the Regulations . [ 4 ] The evidence establishes the following facts on a balance of probabilities: a. Mr. Guion had been registered under

section 19 of the Regulations each year between, and including, 2014 – 2017. b. In February, 2018, Mr. Guion was aware that his registration had expired. c. Mr. Guion is a skilled and experienced fisher, who has been employed as a commercial fisher for more than 30 years. However, his literacy skills are limited. He is not adept with computers. d. In February, 2018, Mr. Guion sought the assistance of Ms. Lana Millott, who works at Beacon Community Services in Sydney, British Columbia. One of the functions of Beacon Community Services is to assist people like Mr.

Guion to navigate the process of seeking and obtaining employment. With Ms. Millott’s assistance, Mr. Guion accessed the DFO website and completed the on-line application to renew his registration under

section 19 of the Regulations . He paid the required fee using a prepaid debit card. At the conclusion of the process, the computer displayed a message to the effect that his payment had been accepted. e. In previous years, Mr. Guion had difficulty in paying the required fee because the DFO website either would not accept his prepaid debit card or did so only after several attempts. As a consequence, he was aware that the on-line registration process was fallible. f. Mr. Guion knew that, when a person applies on-line to register under

section 19 of the Regulations and the application is successful, that person receives a confirmatory e-mail from DFO within a few days after registration. g. In the period between his attempted registration at Beacon Community Services and March 14, 2018, Mr. Guion did not check his e-mail to see whether he had received a confirmatory e-mail from DFO. h. Mr. Guion was on board the Quicksilver Girl on March 14, 2018 because the owner of the vessel had expressed interest in hiring Mr. Guion for the season as the captain of another vessel. Many of the fishers in the crab fishery are of Vietnamese origin.

In the course of his experience, Mr. Guion has acquired a working facility in the Vietnamese language. He was on board to assist the owner in training the crew, to interpret between the owner and the crew and to display his skills. He did not actively participate in fishing, for example by navigating the vessel, hauling gear or emptying traps.

i. Mr. Guion believed that he was not required to be registered under

section 19 of the Regulations on March 14, 2018 because hewas not “fishing” on that day. Analysis [5] The actus reus of the offence is clearly proven beyond a reasonable doubt. Three issues remain for consideration: a. Is Mr. Guion entitled to be acquitted by operation of

section 78.6 of the Fisheries Act? b. Is Mr. Guion entitled to be acquitted by operation of the doctrine of “officially-induced error”? c. Is Mr. Guion entitled to be acquitted because he mistakenly believed that he was not required to be registered because he wasnot “fishing” on the day in question? [6] Mr. Adams, for the Crown, relies upon the judgment of Chief Justice Gushue in R v. Tavares (1996) (NLCA), 144 Nfld&PEIR 154.

At paragraph 28 of his reasons, the learned Chief Justice adopted the following statement of principle: The operation of the mistake of fact offence (sic.) in a strict liability context must be carefully distinguished from its operation in a mensrea context. In the usual case of a mens rea offence, an accused may use the defence if he or she honestly believed in a mistaken set offacts. If honestly made, the mistake need not be reasonable, as long as there is some evidence which gives a “sense of reality” to thedefence. The defence operates as a simple denial of mens rea.

However, in the strict liability context, the defendant’s mistake must not only be honest, but (using an objective standard) must also bereasonable. To state the test another way, to establish lack of fault, the accused must establish that he or she was mistaken on reasonablegrounds; i.e. that a reasonable person in the same situation would have made the same (non-negligent) factual mistake. Mr. Adams submits that Mr. Guion’s mistaken belief that he had successfully renewed his registration in February 2018 was not areasonable belief because Mr.

Guion failed to check for the confirmatory e-mail which he ought to have received if his registration hadbeen renewed. Put another way, Mr. Adams submits that Mr. Guion’s carelessness in failing to check for the confirmatory e-maildeprives him of the right to rely upon his mistaken belief in defence of the charge against him. [7] The principle approved in Tavares is congruent with

section 78.6 of the Fisheries Act. Under that section, an accused person isentitled to be acquitted if she: a. exercised all due diligence to prevent the commission of the offence; or b. reasonably and honestly believed in the existence of facts that, if true, would render her conduct innocent. I think that a reasonable person in the position of Mr. Guion, knowing, as he did, that the DFO website was fallible, would have checkedfor a confirming e-mail before going fishing, and would have made enquiries if the confirming e-mail were not received. I conclude thatMr. Guion is not entitled to a defence under

section 78.6. [8] Mr. Guion’s belief that he was not required to be registered because he was not fishing on the day in question was a pure errorof law, resulting solely from his misconstruction of

section 25 of the Regulations. The defence of officially-induced error arises onlywhen the citizen has been led to a mistaken understanding of his legal obligations by some legal advice proffered by an official source. An error of law which is not officially-induced does not afford a defence to a charge of a strict liability offence: R v. Shiner [2007] NJNo. 101; 2007 NLCA 18; R v. Robinson [2001] BCJ No. 435; 2001 BCSC 2014; Sovereign General Insurance Co. v. Autoritề desmarches financiers [2012] QJ No. 33; 2012 QCCA 13. Disposition [9] I convict Mr. Guion of the offence charged. March 12, 2019 ____________________________ T. Gouge, PCJ