R. v. Dicesare Date:, 2016 BCPC 409

Citation: R. v. Dicesare Date: 20161213 2016 BCPC 409 File No: 18095-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GILBERT DICESARE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: S. Simpson Appearing in person: Gilbert Dicesare Place of Hearing: Courtenay , B.C. Date of Hearing: March 14, 2016 Date of Judgment: December 13, 2016

[ 1 ] On the afternoon of July 8, 2015, three Department of Fisheries and Oceans (DFO) Officers, including Officers Mott and Conley, were patrolling the waters of Georgia Straight and observed a large recreational fishing fleet in an area referred to by locals as “The Hump”. I accept that this area is a well known and popular area for salmon fishing. At approximately 4:30 pm the officers randomly chose a boat being operated by Mr. Dicesare for an inspection. Officer Mott was the primary investigator who boarded the boat and spoke with Mr. Dicesare.

Officer Conley testified that they chose this boat from “amongst the fleet” of recreational boats and they were approximately fifty to one hundred yards away from Mr. Dicesare when they first saw it. [ 2 ] Mr. Dicesare was asked to pull up his gear which consisted of a downrigger and line on each side of his boat. The gear was typical for that used to catch salmon and each line had a barbed hook. It was described by Officer Conley who observed the gear when it was brought to him by Officer Mott as “some of the best salmon tackle” in use. [ 3 ] Mr.

Dicesare was charged with fishing for salmon with prohibited gear - a barbed hook - pursuant to

section 49 of the Sport Fishing Regulations , 1996 SOR/96-137 . [ 4 ] That

section of the Regulation contains the following words: 49 No person shall fish for salmon by a method or with a type of gear or bait set out in column I of an item of the table to this

section in any Subarea, lake or stream during the close time set out in column II of that item. [ 5 ] The table has the following heading: CLOSE TIMES FOR SALMON ANGLING BY METHOD, GEAR AND BAIT Item 4 on that table prohibits using a barbed hook for salmon. [ 6 ] An amendment to the Sport Fishing Regulations was brought into force on April 24, 2015 which provided that the close time for fishing for salmon in all tidal waters, by means of a barbed hook, was from April 1 to March 31.

In other words, at no time is it permissible to use a barbed hook to fish for salmon in any tidal waters: Pacific Region Gear Method Bait Variation Order , No. 2015-38. [ 7 ] The fine for a voluntary (out of court fine) indicated on the ticket was $300.00. The Regulation provides for a fine of up to $100,000 for a first offence when the Crown proceeds summarily as they did in this case. [ 8 ] Mr. Dicesare has no prior record. He has been a sport fishing guide for twenty six years. [ 9 ] Mr. Dicesare was working as a guide that day and had clients from Alberta on board.

It had been slow for salmon that day and in spite of being on the water for six and one half to seven hours, Mr. Dicesare testified that they had only caught one pink salmon and approximately five pacific cod which had been released as their intention was to fish for salmon. The one pink they caught was in The Hump. [ 10 ] Mr. Dicesare submits that he was not fishing for salmon. Instead, he submits that he was actually fishing for pacific cod, a ground fish which requires that the fisher drop the fishing line to a depth of about three hundred feet.

His argument is that it is not illegal to use a barbed hook when fishing for pacific cod. In the event that a salmon is incidentally caught, it would be released back into the ocean and had that occurred, he would have done so. As a result, he argues that he is not guilty of the offence. [ 11 ] Mr. Dicesare gave evidence that at the time the DFO officers checked his vessel, he was fishing three or four miles away from The Hump in deeper waters and he points to this as evidence that supports his assertion that he was not fishing for salmon.

He testified that he was fishing at a depth of about two hundred and eighty to three hundred feet where the pacific cod could be caught. He testified that The Hump, by contrast, is much shallower and he would typically put his lines in to a depth between sixty and one hundred and sixty feet when fishing for salmon. When the DFO boat appeared, he testified that he was fishing in a completely different area and he was the only boat in that area. [ 12 ] His evidence is that after the DFO officers took the gear away, he and his clients were surprised when DFO officers returned and he was given a ticket.

He testified that on their return they had a conversation about what they were fishing for and that he was not fishing for salmon, but for pacific cod. [ 13 ] In contrast, DFO Officers Mott and Conley testified that Mr. Dicesare was trolling in The Hump when they observed his vessel. [ 14 ] Officer Mott testified that Mr. Dicesare was co-operative and told him that he was fishing for salmon. [ 15 ] Officer Mott did not examine the downriggers to check the depth of the lines.

He did not check the depth sounder which would have been on board the DFO boat. [ 16 ] I do not accept that DFO officers would have gone three or four miles away from the large recreational fleet they observed fishing The Hump to investigate Mr. Dicesare. As Mr. Dicesare testified, boats troll back and forth over this area which is about 2 to 4 football fields in size. The DFO officers were checking compliance for salmon fishing regulations and in this instance were focused on that particular area. [ 17 ] There is no evidence that at the outset of his encounter with the DFO officers Mr.

Dicesare advised the DFO officers, in particular, Officer Mott, that he was actually fishing for pacific cod and not salmon. The only evidence is from Officer Mott who recalls that Mr. Dicesare told him they were fishing for salmon and from Mr. Dicesare who testified that the DFO officers never asked him what he was fishing for and that they only assumed, erroneously he argues, that he was fishing for salmon. [ 18 ] In cross examination of both officers, Mr. Dicesare suggested to them both that he did not tell them that he was fishing for

salmon and that the only question he was asked was whether he had any fish on board. [19] Both officers deny this and were clear in their testimony that Mr. Dicesare did not tell them he was fishing for ground fish,specifically, pacific cod. [20] However, the Crown has the burden of proof to establish an offence beyond a reasonable doubt. [21] As there is a divergence in the evidence, I have to consider the credibility and reliability of all the witnesses. I am mindful that Icannot simply choose one witness’s version over another but must consider whether I believe Mr.

Dicesare or, if I do not, whether theCrown’s evidence, or the evidence as a whole satisfies me beyond a reasonable doubt that Mr. Dicesare is guilty of the offence - that hewas fishing for salmon with a barbed hook. If I do not know who to believe, I must acquit. [22] It would have been very helpful to have evidence from the DFO officers about the depth of Mr. Dicesare’s lines which couldhave been ascertained from the downriggers or from their own equipment on board the DFO vessel.

There was also no evidence either inexamination in chief or in reply of the actual location or coordinates of the DFO vessel when it was alongside Mr. Dicesare. That alsowould have been helpful to the Court. [23] In the final analysis, I am unable to make a determination about who to believe.

I acknowledge that there are aspects of Mr.Dicesare’s evidence that are troublesome. [24] I think it is likely that he was fishing in the general area known as The Hump and it is possible that he was fishing for salmon,but that is not the standard of proof required of the Crown. [25] After a careful consideration of all the evidence, I am not satisfied beyond a reasonable doubt that Mr. Dicesare was fishing forsalmon with a barbed hook. [26] I was referred to the decision of my brother Judge Gouge in R. v. Rupp, 2015 BCPC 301 , 2015 BCPC 0301, in whichhe found that in the circumstances before him Mr.

Rupp was guilty of fishing for salmon with a barbed hook. He did not accede to Mr.Rupp’s defence that he was fishing for rockfish, not salmon, and at para. 2 stated that: I think it sufficient for the Crown to prove, beyond a reasonable doubt, that Mr. Rupp was aware that catching a salmon was a probableresult of his conduct, and that he deliberately took the risk of catching a salmon with a barbed hook. [27] Crown counsel’s submission is that it doesn’t matter what Mr. Dicesare was intending to catch that afternoon.

Salmon could becaught in the area in which he was fishing and he simply should have used a barbless hook. [28] The Rupp decision must be considered in light of the particular facts in that case including that Mr. Rupp had one line at a depthof one hundred feet although rockfish are usually, although not always, found on the bottom of the ocean. He had a second line at adepth of one hundred and ninety-nine feet and when he pulled it up a juvenile salmon had been caught by the barbed hook and wasreleased by Mr.

Rupp. [29] In cross examination, Officer Conley acknowledged his understanding that it is not illegal to fish with a barbed hook if theindividual is fishing for a species other than salmon and that if a salmon was caught incidentally, it would simple have to be released. [30] As was clear from the cross examination of Mr. Dicesare by Crown counsel, many different species of fish, including salmon,can be caught at different depths and in many different areas of the ocean.

With respect, to follow the submission of Crown would meanthat in any location where there was a substantial risk or probability or likelihood that salmon could be caught, fishing with a barbedhook would be illegal even if the individual was fishing for a species that legally could be caught with a barbed hook. If that was theintent of the legislation and the legislators, barbed hooks would simply be prohibited from all tidal areas and not just when “fishing forsalmon”. [31] Accordingly, Mr. Dicesare is acquitted of the charge. BY THE COURT The Honourable Judge B. Flewelling