R. v. Keitsch, 2023 BCPC 111

Citation: R. v. Keitsch 2023 BCPC 111 Date: 20230424 File No: 17954 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DEAN KEITSCH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: A. Switzer Counsel for the Defendant: J. Doyle Place of Hearing: Sechelt , B.C. Dates of Hearing: April 25, 26, 27, November 22, 23, 24, 25, 2022, February 24, March 31, April 17, 24, 25, 26, 27, 2023

Date of Judgment: May 24, 2023 INTRODUCTION [1] Dean Keitsch (“Mr. Keitsch”) is charged with two counts of fishing during a closed time and four counts of failing to complywith the conditions of his licence. These offences are contrary to

section 63 of the Pacific Fishery Regulations and 43.4(1) of theFisheries Act and are thereby offences under

section 78(

a) of the Fisheries Act. These offences are alleged to have occurred between July2, 2020 and September 24, 2020. [2] Mr. Keitsch pled guilty to the seven other Fisheries Act charges contained in the Information. [3] The trial commenced April 25, 2022 and continued for 14 days, completing April 27, 2023. A BRIEF

SUMMARY OF THE FACTS AND ALLEGATIONS [4] Dean Keitsch is the owner of the fishing vessel Dark Star. On July 2 and 3, 2020, fishery officers seized prawn traps owned byMr. Keitsch in the Sechelt Glass Sponge Reef area. Prawn fishing was not permitted in this area. On July 9, 2020, the Dark Star wasobserved in Pylades Channel.

It is alleged that the crew was hauling gear prior to 7:00 a.m. and thereby violated that licence condition.On July 10, 2020, fishery officers measured a buoy seized from the Dark Star and determined that the buoy did not meet the minimum-size requirement of the licence condition. [5] It is also alleged that Mr. Keitsch failed to keep an accurate harvest book and failed to ensure the completed pages wereforwarded to the appropriate authority within the time required by his licence condition. POSITIONS OF THE PARTIES [6] Crown counsel submits that the Crown has proven all of the charges beyond a reasonable doubt.

Crown counsel further submitsthat the defence testimony should be rejected. Crown counsel also submits that Mr. Keitsch has not established the defences of duediligence and officially induced error of law. [7] Defence counsel submits that the Crown has failed to prove the charges beyond a reasonable doubt. Defence counsel furthersubmits that the defence testimony should be accepted, or in the alternative, that it raises a reasonable doubt. In the further alternative,defence counsel submits that the defences of due diligence and officially induced error of law have been proven.

CREDIBILITY AND RELIABILITY [8] This case raises issues of credibility and reliability and involves the application of the presumption of innocence. A fundamentalrule in our criminal justice system is that the burden of proving the guilt of an accused is upon the prosecution. Before an accused can beconvicted of an offence, the trier of fact must be satisfied beyond a reasonable doubt of the existence of all of the essential elements ofthe offence: see R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636, at paragraph 94. [9] The principle of reasonable doubt applies to issues of credibility as well as fact: see R. v.

Ay, (BCCA), atparagraphs 7 and 71. In accordance with the ruling by the Supreme Court of Canada in R. v. W.(D.), 1991 S.C.R. 742, and the Court ofAppeal in R. v. H.(C.W.), (BCCA), I instruct myself on the following bases: 1. If I believe evidence raising a defence or negating an essential element of the offence, I must acquit; 2. If, after a careful consideration of all of the evidence, I am unable to decide who to believe, I must acquit; 3. If I do not believe evidence raising a defence or negating an essential element of the offence but I am left in a reasonable doubt by it,I must acquit; 4.

Even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [10] What I must not do is view this decision as an either/or choice. My decision does not depend on a stark choice of who is believed,but rather, whether the charges have been proven beyond a reasonable doubt. I must not inadvertently shift the onus onto the accused torequire the accused to show a motive for a witness to fabricate. I must not weigh the evidence piecemeal.

I must not confuse “mightreasonably be true” with the test of reasonable doubt by shifting the onus to the accused to persuade me the defence evidence mightreasonably be true. ASSESSING CREDIBILITY AND RELIABILITY [11] When assessing a witness’ credibility and reliability, I will consider a witness’ testimony from the following perspectives: 1. Their truthfulness – whether they were trying to tell the truth, or whether they were intentionally lying while testifying; 2. Their objectivity – whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; 3.

The accuracy of their observations – a witness’ ability to observe, remember and communicate accurately;

4. The external consistency of the testimony – is the testimony consistent with other independent evidence which is accepted? and 5.

The “sense” of the evidence – when weighed with common sense, does it seem impossible or unlikely, or does it “make sense”? [12] Factors relevant to truthfulness include previous inconsistent statements or occasions in which the witness has been untruthful;inconsistencies in testimony during direct and cross-examination; and reliable evidence that conflicts with a witness’ testimony. [13] I will remember that a witness’ objectivity may be influenced by the witness’ expectations, assumptions of unproven facts, orsubsequent events.

Attentiveness and the duration and circumstances of a witness’ observations may affect accuracy. A witness’ reasonsfor recalling an event and the length of time between the event and testimony may affect reliability. Finally, I caution myself that somewitnesses may have difficulty communicating their evidence clearly because of nervousness: see R. v. Gladue, 2005 BCPC 365 ,at paragraphs 3 to 5; see also R. v. Parent, 2000 BCPC 11, at paragraphs 4 and 5. DUE DILIGENCE [14]

Section 78.3 of the Fisheries Act is a codification of the common-law rule that a principal is responsible for the actions of hisagents, where those actions are within the proper scope of the agency and where there are no systems or controls in place to prevent anoffence from occurring. The clause in

section 78.3, “unless the accused establishes that the offence was committed without theknowledge or consent of the accused”, imports reasonable care or the due-diligence defence to the liability of a principal for its agent:see R. v. F.A.S. Seafood Producers Ltd., 2000 BCCA 464, at paragraphs 23 and 24. [15] The defence of due diligence will be available if the accused reasonably believed in the mistaken set of facts which if true wouldrender the act or omission innocent, or if the accused took all reasonable steps to avoid the particular event.

The onus is on the defence toestablish on the balance of probabilities the defence of due diligence. The defence is not required to show that it took all possible orimaginable steps to avoid liability. It is the existence of a proper system to prevent the commission of the offence and reasonable steps toensure the effective operation of the system that must be proved. The conduct of the accused is assessed against that of a reasonableperson in similar circumstances: see R. v. Syncrude Canada Ltd., 2010 ABPC 229, at paragraphs 95 to 99.

OFFICIALLY INDUCED ERROR OF LAW [16] Officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has provenall elements of the offence. In order for an accused to rely on this excuse, he must show, after establishing he made an error of law, thathe considered his legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in his actions. Theelements of the officially induced error of law excuse are to be proven on a balance of probabilities by the accused.

The successfulapplication of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal.Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful inthe clearest of cases: see R. v. Jorgensen, 1995 CarswellONT 985, at paragraphs 36 to 38. COUNT 1: July 2, 2020, Fishing During a Closed Time [17] Mr. Keitsch says that on June 28, 2020, he loaned the Dark Star to Robert Wayne Guerin (“Wayne Guerin”). The agreement withWayne Guerin was that Mr.

Keitsch would set traps for Wayne Guerin on June 27; Wayne Guerin would start fishing on June 28; settraps for Mr. Keitsch on June 30 or July 1; return the Dark Star on July 1. Mr. Keitsch says that Wayne Guerin set traps for Mr. Keitschin accordance with their agreement on either June 30 or July 1 and returned the Dark Star as agreed. The traps that were set on June 30 orJuly 1 were set in the Sechelt Glass Sponge Reef area. On July 2, the traps were removed from the water and seized by fishery officers. [18] Mr.

Keitsch says that Wayne Guerin set the traps in the Sechelt Glass Sponge Reef area without his knowledge or consent.Further, Mr. Keitsch says that he had a written agreement with Wayne Guerin. In clause 12 of that agreement, Wayne Guerin agreed thathe would fish at all times in accordance with all applicable commercial fishing regulations. Mr. Keitsch told the court that Wayne Guerindied prior the trial commencing. [19] Mr. Keitsch submits that he exercised due diligence and ought to be acquitted. Crown counsel submits that it was actually Mr.Keitsch who was fishing during this time.

Crown counsel submits that in the alternative, Mr. Keitsch has not established the due-diligence defence. [20] Derek Manson testified for the defence. He said that between June 27, 2020 and June 30, 2020, he was a deckhand on the DarkStar. He said that the skipper at that time was Wayne Guerin. Mr. Manson says that they offloaded their prawn catch in Sechelt. He saidthat they were providing the prawns to the shíshálh Nation. Mr. Manson’s testimony with respect to the dates is contradicted by Mr.Keitsch. [21] Sid Quinn is the Resource Management Director for the shíshálh Nation.

He testified that no licence was issued by the shíshálhNation to Wayne Guerin. He also said he has never heard of the vessel Dark Star. He said the shíshálh Nation did not receive prawns assuggested by Mr. Manson. His testimony was not challenged. I accept Mr. Quinn’s testimony. [22] Exhibit 8 contains the vessel tracking records for the Dark Star. Those records show that the Dark Star did not dock in Sechelt assuggested by Mr. Manson. I accept that the vessel tracking records accurately show the movements and positions of the Dark Star. [23] Frank Keitsch is Mr. Keitsch’s younger brother.

Frank Keitsch testified for the defence. He said he was a deckhand on the DarkStar in June and July 2020. He said that at some point in June 2020, his brother told him there was going to be a crew change on the boatand as a result, Frank Keitsch did not fish with his brother for a few days. [24] On July 3, 2020, fishery officers determined that Mr. Keitsch and the Dark Star were in the Sechelt Glass Sponge Reef area. At2:18 p.m. that day, Fishery Officers Clattenburg and McKnight boarded the Dark Star. Fishery Officer McKnight arrested Mr. Keitschfor fishing in a closed area.

[ 25 ] Mr. Keitsch told Fishery Officer McKnight that he had set traps in the reef on July 2, 2020 in error. Mr. Keitsch also told Fishery Officer McKnight that on July 3, 2020, he had returned to the area at 11:58 a.m. and noticed that his floats were missing. Mr. Keitsch explained to Fishery Officer McKnight that he did not realize that he had set traps in the closed area until 12:09 p.m. that day, when he used an application on his phone and determined that he was within a marine-protected area. [ 26 ] Fishery Officer Clattenburg said that Mr.

Keitsch told him that he had found out that he had set the traps in a closed area at 11:00 a.m. that day. I accept the testimony of Fishery Officer McKnight and Fishery Officer Clattenburg with respect to what Mr. Keitsch told them. ANALYSIS Do I believe the evidence raising a defence or negating an essential element of the offence? [ 27 ] Mr. Keitsch is required to maintain a logbook that records his fishing activities. Between June 28, 2020 and July 2, 2020, Mr. Keitsch recorded that he was the vessel master on the Dark Star. On a previous occasion when Mr.

Keitsch allowed someone else to use his boat, that person was noted as the vessel master. [ 28 ] Further, Mr. Keitsch said that as part of his agreement with Wayne Guerin, Mr. Keitsch set traps on June 27, 2020. The vessel tracking records in Exhibit 8 contradict Mr. Keitsch’s testimony on this point. I accept that the vessel tracking records are accurate. [ 29 ] Moreover, Mr. Keitsch told Fishery Officers Clattenburg and McKnight on July 3, 2020, that he is the one that set the traps that were seized on July 2, 2020. On July 9, 2020, Mr. Keitsch was speaking with Fishery Officer Toner. At that time, Mr.

Keitsch talked about the events of July 2, 2020. Mr. Keitsch told Fishery Officer Toner that “I made a mistake - it was an honest mistake”. [ 30 ] With respect to Mr. Manson’s testimony, his testimony is contradicted by Mr. Keitsch, Sid Quinn and the vessel tracking records. [ 31 ] On the totality of the evidence and considering the contradictions that I have referred to, I do not believe the defence evidence.

Having determined that I do not believe the evidence raising a defence or negating an essential element of the offence, am I left with a reasonable doubt by it? [ 32 ] On the totality of the evidence and considering the contradictions that I have referred to, I am not left with a reasonable doubt. I affirmatively reject the testimony of Mr. Keitsch, Frank Keitsch and Mr. Manson with respect to who was fishing between June 28, 2020 and July 2, 2020. Has Count 1 been proven beyond a reasonable doubt? [ 33 ] The traps that were seized on July 2, 2020 belonged to Mr. Keitsch. On July 3, 2020, Mr.

Keitsch went to collect those traps. Mr. Keitsch’s logbook shows that he was the skipper between June 28 and July 2, 2020. [ 34 ] On July 3, 2020, Mr. Keitsch told Fishery Officer McKnight that he had set the traps on July 2, 2020. This is inaccurate because the vessel tracking records show that the Dark Star was not in this area on July 2, 2020. [ 35 ] Fishery Officer Clattenburg was specifically asked during cross-examination if Mr. Keitsch said what day he set the traps that were seized on July 2, 2020. Fishery Officer Clattenburg’s recollection was that Mr.

Keitsch said he had set the traps but did not specify the date. [ 36 ] If Mr. Keitsch did say he set the traps on July 2, 2020, then I think Mr. Keitsch simply misspoke. He was clearly conveying to the fishery officers that he had set the traps, albeit two days prior based on the logbook and vessel tracking records, and not the day before. This is supported by the fact that on July 9, 2020, Mr. Keitsch told the fishery officer that he had made an honest mistake when he set the traps in the marine-protected area that were seized on July 2, 2020. [ 37 ] On each occasion, Mr.

Keitsch did not tell the fishery officers that someone else had his boat and set the traps. [ 38 ] Considering the totality of the evidence, I am satisfied that Count 1 has been proven beyond a reasonable doubt. [ 39 ] Mr. Keitsch submits that the notice issued by Fisheries and Oceans Canada did not adequately describe the closed area. Mr. Keitsch rightly points out that the closed area was described as “The McCall Bank Closure” and not “The Sechelt Closure”. Mr. Keitsch also notes that the following year, Fisheries and Oceans Canada changed the description from “McCall” to “Sechelt”. Mr.

Keitsch says that because he was not intending to fish near McCall Bank, he did not ascertain the exact location of that closure. He submits that this constitutes an officially induced error of law and this charge should be stayed. [ 40 ] Mr. Keitsch acknowledged that he did not make any effort to determine where the closed area was. He did not review the information provided by Fisheries and Oceans Canada that listed the latitude and the longitude of the closed area. Mr. Keitsch only relied on a portion of the information provided by Fisheries and Oceans Canada.

He did not contact an appropriate official to determine the area of the closure. This is not the clearest of cases to grant a stay of proceedings. The application for a stay of proceedings is dismissed. [ 41 ] I find Mr. Keitsch guilty on Count 1. COUNT 2: July 3, 2020, Fishing During a Closed Time [ 42 ] There is no dispute that on July 3, 2020, Mr. Keitsch placed baited traps in the Sechelt Glass Sponge Reef area. Mr. Keitsch said he was doing this in an attempt to recover what he believed to be his missing prawn traps that were seized on July 2, 2020.

[ 43 ] Mr. Keitsch submits that this was a “gear recovery project” and that he was not fishing. Crown counsel submits that this is a strict liability offence and therefore, Mr. Keitsch’s intention is not relevant. Crown counsel further submits that by placing baited traps in the water, Mr. Keitsch was “fishing”, as that term is defined in

section 2 of the Fisheries Act . [ 44 ] I agree with Crown counsel. This is a strict liability offence. Mr. Keitsch’s actions constituted “fishing” as that term is defined in

section 2 of the Fisheries Act . Considering the totality of the evidence, I am satisfied that Count 2 has been proven beyond a reasonable doubt. [ 45 ] I find Mr. Keitsch guilty on Count 2. [ 46 ] For sentencing purposes, defence counsel submits that the Crown has not proven that all of the traps were within the Sechelt Glass Sponge Reef area. Specifically, defence counsel rightly points out that float nine of string five was outside the marine-protected area; however, the other float attached to string five, float 10, was in the marine-protected area.

Fishery Officer McKnight said that 25 of the 55 traps on string five were in the marine-protected area. He maintained this during cross-examination. Photograph 85 of Exhibit 15 shows that float 10 was within the marine-protected area. For sentencing purposes with respect to string five, I find the Crown has proven beyond a reasonable doubt that 25 of the 55 traps on string five were within the Sechelt Glass Sponge Reef area. COUNT 5: July 9, 2020, Hauling Prior to 7:00 a.m. [ 47 ] Griffin Barlow, in July 2020, was working for J.O. Thomas and Associates Ltd. as an at-sea observer. On July 9, 2020, Mr.

Barlow observed the Dark Star in Pylades Channel. At 6:48 a.m. that day, he says he saw the crew of the Dark Star hauling gear. [ 48 ] Mr. Keitsch and Frank Keitsch both testified that no hauling occurred prior to 7:00 a.m. on July 9, 2020. Do I believe the evidence raising a defence or negating an essential element of the offence ? [ 49 ] Mr. Barlow had an unobstructed view of the Dark Star. He said he could see traps coming out of the water. He said by 6:55 a.m., approximately 50 traps were out of the water. [ 50 ] On July 9, 2020, Mr. Keitsch provided a statement to fishery officers. In that statement, Mr.

Keitsch said “So this morning when I was in there hauling, he says – he said . . . you’re a few minutes early and I will have to call the DFO”. [ 51 ] In the statement, Mr. Keitsch was asked by the fishery officer: “Do you know the exact time which you grabbed the buoy and started hauling?” To which Mr. Keitsch replied, “No, I don’t know. I don’t know the exact time”. [ 52 ] Later in the statement, Mr. Keitsch acknowledged that he was told by Mr. Barlow that he was hauling early. Mr. Keitsch then said “Yeah, I know, but by how many minutes, I don’t know”. Further on in the statement, Mr.

Keitsch stated, “It’s a pain in the ass to have to wait until 7 am, it really is”. [ 53 ] During direct examination, Mr. Keitsch said that he felt pressured and forced to give a statement. A voir dire was held and it was determined that Mr. Keitsch provided the statement “voluntarily”, as that term is defined in law. After the voir dire and later in his direct examination, Mr. Keitsch said that some of what he told the fishery officer was inaccurate. [ 54 ] Mr. Barlow had an unobstructed view of the Dark Star and clearly described hauling occurring prior to 7:00 a.m. Mr.

Keitsch’s description in his statement of what occurred on July 9, 2020, is similar to what Mr. Barlow described. On July 9, 2020, Mr. Keitsch never told Mr. Barlow that he was not hauling. Mr. Keitsch said that his memory has been affected by the passage of time and by the number of concussions he has suffered. [ 55 ] On the totality of the evidence and considering what Mr. Keitsch told the fishery officer on July 9, 2020, plus the admitted frailties in Mr. Keitsch’s memory, I do not believe the defence evidence.

Having determined that I do not believe the evidence raising a defence or negating an essential element of the offence, am I left with a reasonable doubt by it? [ 56 ] On the totality of the evidence, considering what Mr. Keitsch told the fishery officer on July 9, 2020, and the similarity between what Mr. Keitsch described to the fishery officer and what Mr. Barlow said, plus the admitted frailties in Mr. Keitsch’s memory, I am not left with a reasonable doubt. I affirmatively reject the testimony of Mr. Keitsch and Frank Keitsch with respect to whether hauling occurred prior to 7:00 a.m. on July 9, 2020.

Has Count 5 been proven beyond a reasonable doubt? [ 57 ] Mr. Barlow had an unobstructed view of the Dark Star. He clearly described hauling prior to 7:00 a.m. on July 9, 2020. Mr. Keitsch, in his statement to the fishery officer on July 9, 2020, admitted he was hauling gear. He also told the fishery officer that he had not checked the time prior to hauling. Considering the totality of the evidence, I am satisfied that Count 5 has been proven beyond a reasonable doubt. [ 58 ] I find Mr. Keitsch guilty on Count 5.

COUNT 7: June 4, 2020 to July 9, 2020, Failing to Keep a Complete and Accurate Harvest Book [ 59 ] There is no issue that Mr. Keitsch’s logbook (harvest book) was not complete and accurate. Mr. Keitsch did not record the area and sub-area where he fished. Mr. Keitsch did not record the correct number of traps he set in the water. Mr. Keitsch recorded that he hauled two lines at the exact same time, which is not possible. Mr. Keitsch did not record the exact time of hauling; he said he rounded the time to the nearest hour.

[ 60 ] Mr. Keitsch explained that he filled out his logbook based on information that he received from fishery officers and employees of the Shellfish Data Unit of the Pacific Biological Station. Mr. Keitsch said that he believed he was filling out his logbook appropriately because he was not told anything to the contrary and he was able to obtain a fishing licence each year. [ 61 ] Defence counsel submits that due diligence and officially induced error of law have been proven. Crown counsel submits that neither defence has been proven. [ 62 ] Mr.

Keitsch acknowledged that he did not read the Integrated Fisheries Management Plan that explains how to fill out the logbook. Mr. Keitsch said he spoke with unnamed fishery officers at unknown times and unknown employees of the Shellfish Data Unit at unknown times and they provided information to him that he followed when completing his logbook. Mr. Keitsch was not able to provide any details of the conversations he had with fishery officers or the employees of the Shellfish Data Unit. Mr. Keitsch also said that those conversations may have occurred many years prior to June and July 2020. [ 63 ] Mr.

Keitsch should have read the Integrated Fisheries Management Plan. It was not reasonable for Mr. Keitsch to believe he was filling out his logbook correctly. He did not take reasonable steps to avoid the errors. The defence of due diligence has not been proven on a balance of probabilities. [ 64 ] I am satisfied that Count 7 has been proven beyond a reasonable doubt. [ 65 ] Mr. Keitsch seeks a stay of proceedings on the basis of an officially induced error of law. I am satisfied that Mr.

Keitsch considered his legal position when he sought advice on how to complete his logbook; however, I am not satisfied that Mr. Keitsch has established on a balance of probabilities that he consulted an appropriate official and obtained reasonable advice. Mr. Keitsch was not able to say specifically who he consulted, nor was he able to specifically say what advice he received. He was not able to say when the conversations took place. This is not the clearest of cases to grant a stay of proceedings. The application for a stay of proceedings is dismissed. [ 66 ] I find Mr. Keitsch guilty on Count 7.

COUNT 11: July 10, 2020, Improper-sized Buoy [ 67 ] On July 9, 2020, Fishery Officer Sanderson learned that Griffin Barlow had reported that the crew of the Dark Star was hauling gear prior to 7:00 a.m. As a result, he and other fishery officers located and seized three strings containing Mr. Keitsch’s prawn traps. On July 10, 2020, Fishery Officer Sanderson and other fishery officers located a fourth string of prawn traps belonging to Mr. Keitsch, which they hauled at 8:16 a.m. The buoy on the far end of the string was measured. It had a circumference of 115 cm. Mr.

Keitsch’s licence condition required the buoy to have a minimum circumference of 127 cm. [ 68 ] In cross-examination, Fishery Officer Sanderson said that the size of the buoy was not a huge concern to him. He said he would not necessarily pull a string from the water for that reason. Fishery Officer Sanderson also said that he would not investigate an undersized-buoy infraction, which he sees frequently. [ 69 ] Mr. Keitsch noted that the circumference of his buoy was measured horizontally. Mr. Keitsch provided the court with a digital image of a similar buoy that he measured the circumference of vertically. Mr.

Keitsch said that measuring the buoy that way showed that it met the minimum-size requirements. [ 70 ] Based on that, Mr. Keitsch submits that if the fishery officer had measured the circumference of the buoy vertically, it would have met the minimum-size requirement. Crown counsel submits that based on photograph 26 of Exhibit 13 and the testimony of Fishery Officer Sanderson, the charge has been proven beyond a reasonable doubt. Crown counsel says that the licence condition requires the buoy to be a minimum of 127 cm, which it is not. [ 71 ] I accept the testimony of Fishery Officer Sanderson.

Photograph 26 of Exhibit 13 appears to show that the buoy was measured at its widest part. Determining the circumference of the buoy by measuring it horizontally at its widest

part is the appropriate way of determining the circumference of the buoy. I am satisfied that Count 11 has been proven beyond a reasonable doubt. [ 72 ] I find Mr. Keitsch guilty on Count 11. COUNT 13: July 29, 2020 to September 24, 2020, Failure to Forward Log Pages within the Required Time [ 73 ] Mr. Keitsch said that he forwards his completed log pages to the Shellfish Data Unit of the Pacific Biological Station by the end of each calendar year. His licence requires him to forward the completed log pages not later than 28 days following the end of each month that fishing occurred. [ 74 ] Mr.

Keitsch explained that an unnamed person at the Shellfish Data Unit told him that he was permitted to forward all of his completed logbook pages at one time so long as they were received by the Shellfish Data Unit by the end of the year. Mr. Keitsch noted that for years he has been following that advice and was never told that he was noncompliant. Mr. Keitsch pointed out that he was always issued a licence the following year. [ 75 ] Mr.

Keitsch submits that since he asked and was told that the requirement was that all pages needed to be forwarded by the end of the year, he has acted with due diligence and ought to be acquitted. Crown counsel submits that since Mr. Keitsch spoke with an unnamed person at an unknown time and Mr. Keitsch was not able to provide the details of that conversation, the due-diligence defence has not been established. [ 76 ] I agree with Crown counsel. Simply stating that you spoke with someone at some unknown time without providing the details of the conversation is not sufficient to establish the due-diligence defence.

For example, Mr. Keitsch did not recall asking the unnamed person whether or not filing all his log pages at one time at the end of the year would be a licence violation. The tenor of Mr. Keitsch’s

evidence is that he needed to file all of his completed log pages by the end of the year in order to obtain a fishing licence the following year. That does not mean that Mr. Keitsch was complying with the condition of his licence. I am satisfied that Count 13 has been proven beyond a reasonable doubt. [ 77 ] Mr. Keitsch seeks a stay of proceedings on the basis of an officially induced error of law. I am satisfied that Mr. Keitsch considered his legal position when he sought advice on how and when to forward his log pages; however, I am not satisfied that Mr.

Keitsch has established on a balance of probabilities that he consulted an appropriate official and obtained reasonable advice. Mr. Keitsch was not able to say specifically whom he consulted and what he said in detail, nor was he able to specifically say what advice he received. He was not able to say when the conversations took place with any specificity. This is not the clearest of cases to grant a stay of proceedings. The application for a stay of proceedings is dismissed. [ 78 ] I find Mr. Keitsch guilty on Count 13. _____________________________ The Honourable Judge S.M.

Merrick Provincial Court of British Columbia