Gauvin & Noel Co. Ltee. FIRST Appellant and: todd young SECOND Appellant and: lindsay crocker THIRD Appellant And: His Majesty the King Respondent, 2023 NLSC 3

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Gauvin & Noel Co. Ltee. , 2023 NLSC 3 Date : January 6, 2023 Docket : 201904G0066 Between: Gauvin & Noel Co. Ltee. FIRST Appellant and: todd young SECOND Appellant and: lindsay crocker THIRD Appellant And: His Majesty the King Respondent Before: Justice Peter N. Browne On Appeal From: Decisions of the Provincial Court of Newfoundland and Labrador, File # NLPC 1317A00139, dated the 18 th day of December, 2018 and the 31 st day of January, 2019. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: November 9, 2022

Summary: The Appellants, Gauvin & Noel Co. Ltee., Todd Young, and Lindsay Crocker were convicted and sentenced under the Atlantic FisheriesRegulations for fishing without being authorized by a licence and using a vessel in fishing, without a registration card issued for thatvessel. Crocker was convicted and sentenced for an additional charge under the Fishery (General) Regulations for failing to complete aGeneral Fishing Log. The appeal was dismissed, save and except, the charge against Crocker for failing to complete a General Fishing Log.

In respect of thischarge, the Court held the trial judge made a palpable and overriding error in relying on an online dictionary definition of a tuck seinewhen finding that Crocker “purposely and intentionally completed his log book to cover up the illegal fishing” instead of allowing theparties to make further submissions on the distinction between a tuck seine and purse seine. A new trial was ordered on this charge. Appearances: Robby D. Ash Appearing on behalf of the Appellants Karen E. Rehner Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen, 2002 SCC 33; R. v.

Ryan, 2011 NLCA 53; R. v. Noseworthy, 2021 NLSC 115; R. v.Friesen, 2020 SCC 9; R. v. Lacasse, 2015 SCC 64; R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020; Lake v. R., (SCC), [1969] S.C.R. 49; Morozuk v. R., (SCC), [1986] 1 S.C.R. 31; R v. Côté, (SCC),[1996] 3 S.C.R. 139; R. v. Savory, [1992] N.S.J. No. 3, 1990 CarswellNS 104 (N.S.C.A.); R. v. Ulybel Enterprises Ltd., 2001 SCC 56; R.v. Boutcher, 2001 NFCA 33; The Ship Frederick Gerring Jr. v. R. (1897), 1897 CanLII 84 (SCC), 27 S.C.R. 271; R. v. Turbide, [1986]N.B.J. No. 679, 1986 CarswellNB 362 (Q.B.); R. v. Weir (1993), (NL SC), 110 Nfld. & P.E.I.R. 121 (Nfld.

S.C.(T.D.)), aff’d (1995), (NL CA), 125 Nfld. & P.E.I.R. 96 (Nfld. C.A.); Griffin v. R, 2018 PECA 21; R. v. Kelly, 2003NBQB 148; Nevusun Resources Ltd. v. Araya, 2020 SCC 5; R. v. Feltham (1997), (NL SC), 151 Nfld. & P.E.I.R.239, [1997] N.J. No. 109 (Nfld. S.C.(T.D.); R. v. Suter, 2018 SCC 34; R. v. Oates, 2004 NLCA 6; R. v. Saunders, 2014 NLCA 39; R. v.Henneberry, 2019 NSSC 119; Ruby v. Canada (Solicitor General) (CA), (FCA), [2000] 3 F.C. 589, [2000] F.C.J.No. 779 (C.A.); R. v. Cox, [2007] N.J. No. 71, 2007 CarswellNfld 68 (P.C.); R. v. Weir (1990), (NL SC), 185 Nfld.& P.E.I.R. 238, [2000] N.J. No. 4 (Nfld.

S.C.(T.D.)) STATUTES CONSIDERED: Atlantic Fisheries Regulations, 1985 SOR/86-21; Fisheries (General) Regulations, SOR/93-53; FisheriesAct, R.S.C., 1985, c. F-14; Criminal Code of Canada, R.S.C. 1985, c. C-46 TEXTS CONSIDERED: Jesse Shiedlower, “Justices Turning More Frequently to Dictionary, And Not Just for Big Words”, New YorkTimes, (June 13, 2011) REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] Messrs. Lindsay Crocker (“Crocker”) and Todd Young (“Young”) along with the company Gauvin & Noel Co.

Ltee.(“Gauvin”) appeal their conviction and sentence under the Atlantic Fisheries Regulations, 1985 SOR/86-21 (“AFR”) and the Fishery(General) Regulations SOR/93-53 (“FGR”).

[ 2 ] Young and Gauvin were each convicted of two breaches of the AFR pursuant to section 13(1) (c) - “fishing without being authorized by a licence to use that vessel” and section 13(1) (a) - “using a vessel in fishing, without a registration card issued in respect to that vessel” respectively. [ 3 ] Crocker was convicted under sections 13(1)(

c) and 13(1)(

a) of the AFR and section 22(7) of the FGR - failure to complete the General Fishing Log. [ 4 ] On sentencing, Crocker, Young and Gauvin were fined $2000 each and the vessel CFV #139192, the skiff belonging to Crocker, was forfeited. BACKGROUND [ 5 ] On November 30, 2016 the MV Nicole Daniel and MV Mary Shauna were fishing for herring in Bonne Bay, NL. The former vessel is 114 feet long and was captained by Young; the latter vessel is 38 feet long and was captained by Crocker. [ 6 ] Gauvin held the fishing license being fished by the Nicole Daniel which did not designate an operator.

Crocker held the license being fished by the Mary Shauna and he was designated as the operator. Young and Crocker were registered fishermen. [ 7 ] The trial judge found that Gauvin, Young and Crocker entered into an arrangement that was “a serious scheme of illegal fishing”. Young testified as to the specifics. He described an arrangement in which the three parties would fish together making use of one another’s vessels and gear. They and their crew would share the profits, with a double share going to Young, as he was “the boss”.

The trial judge held this resulted in violations of section 13(1) of the Atlantic Fisheries Regulations and section 22(7) of the Fisheries (General) Regulations . [ 8 ] The trial judge’s decision was based on the following relevant evidentiary matrix: On November 30, 2016, Gauvin, Young and Crocker were fishing their own license at the same time pursuant to an arrangement and practice which had been in place for many years. Using its seine, the Nicole Daniel would encircle a school of herring.

While the seine was still in the water, before it had been fully pursed, some of the entrapped herring would be removed from the water and placed aboard the Mary Shauna and its skiff. The herring would be removed from the water by Crocker or one of his crew aboard the Mary Shauna using a dip net or a crew member of the Nicole Daniel using a suction hose aboard the Nicole Daniel transferring the herring directly from the water into the Mary Shauna or its skiff.

When Crocker had his share of the herring aboard the Mary Shauna and its skiff, he returned to port, declared the catch and offloaded while completing the dockside monitoring process. 100% of the herring landed by Crocker in this manner was deducted from his quota and was weighed and recorded by the dockside monitor. The balance of the herring which remained entrapped by the Nicole Daniel ’s seine were caught by closing or ‘pursing’ the seine and hauling it aboard the Nicole Daniel .

The Nicole Daniel then steamed to port where Gauvin declared its catch and offloaded while completing the dockside monitoring process. 100% of the herring off loaded by the Nicole Daniel was deducted from Gauvin’s quota and was weighed and recorded by the dockside monitor. Once offloaded, Gauvin and Crocker immediately sold their catch to the local fish plant. The two pooled the proceeds from the sale of their respective catches and shared the proceeds equally (see testimony of Todd Young, Trial transcript at pp. 227-2228) Gauvin was fishing its herring license using the Nicole Daniel , captained by Young.

Neither the Mary Shauna , nor its white skiff were used at any point in landing its catch. Crocker was fishing his herring license using the Mary Shauna and its white skiff, with the assistance of the Nicole Daniel . The herring landed by Crocker were encircled by the Nicole Daniel ’s seine, removed from the water and placed directly into the Mary Shauna or its white skiff. All the herring landings in question were declared by Gauvin and Crocker, recorded in their respective logbooks and deducted from the quota of their corresponding enterprise.

The landings were subject to dockside monitoring. [ 9 ] The substance of this appeal, according to legal counsel for Gauvin, Young and Crocker, is that there was nothing unlawful about their arrangement and that any perceived violation was merely technical in nature. [ 10 ] In response, the Crown argues if the Court were to accept the position advanced by Gauvin, Young and Crocker it would give no credence to a primary purpose of the Fisheries Act, R.S.C. , 1985, c.

F-14 , which is the management of the commercial fisheries and the role that management plays in conservation of various species as determined by the information provided by licence holders. When viewed in light of these important principles, Gauvin, Young and Crocker’s arguments concerning their convictions and forfeiture order must fail.

STANDARD OF REVIEW Conviction appeal [11] The standard of appellate review on questions of law is correctness and on findings of fact it is palpable and overriding error.For questions of mixed fact and law and inferences of fact, generally the standard is palpable and overriding error although this can varydepending on the inferences or the mixture of fact and law (see: Housen v. Nikolaisen, 2002 SCC 33; and R. v. Ryan, 2011 NLCA 53). [12] Correctness is a lower standard than palpable and overriding error.

If an error of law has occurred, thecorrectness standard permits appellate judges to substitute their findings for those of the trial judge. If the palpable and overridingerror standard applies, appellate judges must show great deference to trial judges with respect to their findings and inferences (see R. v.Noseworthy, 2021 NLSC 115). Sentence appeal [13] The standard to be applied on a sentence appeal is one where the appellate court should only intervene if the circumstancesdemonstrate the sentence is: (

a) demonstrably unfit; or (

b) there was an error in principle that had an impact on the sentence (see R. v.Friesen, 2020 SCC 9; and R. v. Lacasse, 2015 SCC 64). ISSUES 1. Did the trial judge err in convicting Young and Gauvin for offences for which they were not charged? 2. Did the trial judge err when interpreting/applying section 13(1)(

c) of the AFR? 3. Did the trial judge err in convicting Crocker, Young and Gauvin for “using” a vessel in fishing which had not been issued aregistration card? 4. Did the trial judge err in relying upon his own research in establishing a fact upon which he convicted Crocker? 5. Did the trial judge err in ordering the forfeiture of the skiff belonging to the Mary Shauna CFV# 139192? [14] For the reasons that follow, I deny the grounds of appeal on issues 1, 2, 3 and 5, but allow the ground of appeal for issue 4 andorder a new trial on that charge.

REASONS Issue 1: Did the trial judge err in convicting Young and Gauvin for offences for which they were not charged?

Position of the parties Gauvin and Young [15] Counsel for Gauvin and Young argues the charges laid by the Crown were in relation to the use of the vessel captained byCrocker, namely the Mary Shauna and its skiff CFV#7964, but the findings of conviction were in relation to the vessel the NicoleDaniel which was captained by Young and licensed to Gauvin. [16] The information laid against Gauvin and Young reads as follows: Did on or about the 20th day of November 2016 at or near Woody Point in the Province of Newfoundland and Labrador, while operatingunder the authority of a 2016 herring purse seine license, unlawfully use a vessel, the Mary Shauna CFV# 7964, in fishing without beingauthorized by a license to use that vessel, contrary to section 13(1)(

c) of the Atlantic Fishery Regulations, thereby committing an offencepunishable under

Section 78 of the Fisheries Act, R.S.C., 1985 c. F-14 as amended. (Emphasis added); and Did on the 30 day of November 2016 A.D., at or near Woody Point in the Province of Newfoundland and Labrador, unlawfully use avessel in fishing, without a registration card issued in respect to that vessel, CFV# 139192, contrary to section 13(1)(

a) of the AtlanticFishery Regulations, thereby committing an offence punishable under

section 78 of the Fisheries Act, R.S.C., 1985 c. F-14, as amended. [17] The Crown is required to prove the particulars alleged in an information unless they are superfluous (see R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020, at para. 5). Applying this principle to the instant case, that means Gauvin and Young “used”the Mary Shauna in fishing within the meaning of section13(1)(

c) of the AFR, whereas the trial judge’s findings indicate he made theinverse factual finding and proceeded to convict all three appellants on this basis. [18] Gauvin and Young point to several passages from the trial judge’s decision which support their position. At paragraph 11, thejudge writes: I have concluded that the Crown has proven that the three accused committed the actus reus of the offences with which they arecharged. I reach this conclusion based upon the following findings:

The Company and Mr. Young, by assisting and allowing Mr. Crocker, who was not listed in the Company’s license, to take fish out ofthe purse seine, permitted Mr. Crocker to fish pursuant to a license in which he was not named, contrary to section 13(1)(

c) of theAtlantic Fishery Regulations, 1985.; [19] Again at paragraph 86, the judge writes: I conclude that on November 30, 2016, Mr. Crocker fished pursuant to a license in which he was not named and that Mr. Young and theCompany permitted him to do so. He was aided and abetted in fishing, despite not being named in the license, by Mr. Young as skipperof the Nicole Daniel (and thus by the Company as well). As a result, the Crown has established that Mr. Young, Gauvin & Noel and Mr.Crocker violated section 13(1)(

c) of the Atlantic Fishery Regulations, 1985. The Crown [20] The Crown acknowledges that Gauvin and Young were convicted of the breach of section 13(1)(

c) of the AFR on the basis ofdifferent particulars than were set out in the information, but argues this is an appropriate case for the Court to substitute a conviction onthe the particulars set out in the information, pursuant to section 686(1) and 686(3) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Section 686(1)(b)(

i) of the Criminal Code sets out that: 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal: (

b) may dismiss the appeal where: (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, wasproperly convicted on another count of part of the indictment. [21] Section 686(3) sets out that: 686(3) empowers the appeal court to substitute a verdict where an appeal is dismissed under 686 (1)(b)(i): 686(3) where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinionshould have been found and (a)Affirm the sentence passed by the trial court; or (b)Impose a sentence that is warranted in law or remit the matter to the trial court to impose a sentence that is warranted in law.(Emphasis mine) [22] The amendment powers in the Criminal Code are broad and were designed to facilitate adjudication on the merits so as toavoid results predicated on deficiencies in the charging documents.

They also strive to ensure that a multiplicity of proceedings do notarise from single transactions. These rationales underscore the sound proposition that a fair criminal justice system prioritizes substanceover form. [23] In relying on these provisions of the Criminal Code, the Crown also refers this Court to the Supreme Court of Canada decisionsin Lake v. R., (SCC), [1969] S.C.R. 49 and Morozuk v. R., (SCC), [1986] 1 S.C.R. 31 for the authoritythat it is appropriate to substitute convictions on the particulars set out in the information where there is no prejudice to the accused.

Analysis [24] The power to substitute a conviction on the particulars set out in an information was best described by the Supreme Court in Rv. Côté, (SCC), [1996] 3 S.C.R. 139, at paragraphs 91 and 92: 91. In considering whether to amend a defective information or indictment, a court must concern itself with the impact of theproposed amendment upon the accused. The applicable standard under s. 601 of the Code is whether the accused would suffer"irreparable prejudice" as a result of the amended charge: R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555; R. v.Tremblay, (SCC), [1993] 2 S.C.R. 932; Vézina and Côté v.

The Queen, (SCC), [1986] 1 S.C.R. 2;Morozuk v. The Queen, (SCC), [1986] 1 S.C.R. 31. In those Criminal Code cases where there was no evidence that theaccused was misled or irreparably prejudiced by the variance between the indictment and the evidence, the Court amended theindictment and dismissed the appeal. 92. The applicable standard for amendment is the same ….Where a charge is reparable, you repair.

To the extent that the evidenceconforms with the correct charge and the appellants have not been misled or irreparably prejudiced by the variance between the evidenceand the informations, the defect can and should be remedied. [25] The trial judge had before him ample evidence upon which verdicts of guilt on the charges, as particularized in the information,

should have been rendered. At paragraph 83 of the decision he states: 83 . The evidence presented establishes beyond a reasonable doubt that on November 30, 2016, herring was loaded on to the white skiff and the Mary Shauna directly from the purse seine set by the Nicole Daniel . When this occurred, all three vessels were engaged in fishing. There is no difference in taking fish from the water as compared to taking it from a seine, when determining if fishing occurred. Thus I conclude that Mr. Crocker, Mr.

Young and the Nicole Daniel (thus the Company as well) used the white skiff and the Mary Shauna in fishing . [emphasis added]. [ 26 ] A reading of the above passage indicates the trial judge should have entered a verdict of guilty on the breach of subsection 13(1)(

c) in relation to the use of the Mary Shauna as against Gauvin and Young as particularized in the information. [ 27 ] A review of the trial record discloses the evidence conforms to the correct charges and Gauvin and Young have not been misled or irreparably prejudiced by the variance between the evidence and the information. The defect can and should be remedied. [ 28 ] There is no evidence that either have been prejudiced or misled. Their evidence points to an admission of the constituent elements of the offences under section 13(1) (c).

They made no motion to quash the defective information at any stage. [ 29 ] Accordingly, this ground of appeal is dismissed. Issue 2: Did the trial judge err when interpreting/applying section 13(1) (

c) of the AFR ? [ 30 ] Section 13(1) (

c) of the AFR states: Registration Cards, Licenses and Certificates 13

(1) Subject to

section 15 and subsection 51.1(2), no person shall use a vessel, and no owner of a vessel shall permit another person to use the vessel, in fishing for any species of fish referred to in these Regulations unless (

a) a vessel registration card has been issued in respect of the vessel; (

b) the use of the vessel to fish for that species of fish is authorized by a license; and (

c) subject to subsection (2), the person who is using the vessel is named in the license referred to in paragraph (b).

(2) If a license is issued authorizing the use of a vessel to fish for a species of fish and an operator is not named in the license, any registered fisher or any person holding a provincial or territorial fisher’s certificate may operate that vessel to fish for that species. The position of the parties Gauvin and Young [ 31 ] Gauvin and Young argue that the trial judge erred in convicting them under section 13(1) (

c) of the AFR because their conduct amounted to essentially “assisting or aiding” Crocker in the use of his vessel, the Mary Shauna and its skiff , to catch his permitted quota of herring. [ 32 ] A proper

interpretation of section 13(1)(

c) rests within the meaning of the phrase to “use a vessel ”. The trial judge erred in failing to interpret the phrase “person who is using the vessel” in section 13(1) without regard to who the “operator ” of the Mary Shauna was in the context provided by section 13(2). [ 33 ] In considering the context provided by the wording in section 13(2) it is clear that Parliament intended the phrase “person who is using the vessel ” to refer to the person operating the vessel, not “ using ” the vessel in the broad sense of the word as defined in the dictionary. Should the trial judge’s

interpretation of the phrase be adopted then it would capture, for example, crewmembers assisting in the use of the vessel. [ 34 ] They maintain that helping to place the herring that was to be declared and sold under the authority of Crocker’s fishing license aboard his vessel (and its ‘skiff’) does not constitute the use of that vessel (or the ‘skiff’) by Gauvin and Young within the meaning of section 13(1) of the AFR .

A crewmember of the Nicole Daniel using the suction hose to move fish from the water to the Mary Shauna is not “ using ” the Mary Shauna any differently than a crewmember of the Mary Shauna using a dip net to bring fish aboard the vessel. [ 35 ] The trial judge therefore erred in failing to inquire as to whether Gauvin and Young were operating the Mary Shauna or its skiff, instead of whether their conduct could be captured in the broad dictionary definition of the verb “use”.

It is on this basis they ought not to have been convicted of the offences that involve “using ” the Mary Shauna or “using” the vessel which did not have a registration card (i.e. the ‘skiff’). The meaning of the verb “use” must be consistent throughout

section 13 of the AFR , which is something the trial judge failed to do. The Crown [ 36 ] The Crown argues the trial judge followed the correct interpretative approach when considering the meaning of the phrase “use a vessel” under section 13(1) of the AFR , in that the

section focuses not on the use of a vessel generally but on the meaning of the

word “use” in the context of “fishing” as set out in the regulation. To permit otherwise would defeat the intended purpose of the Fisheries Act and Regulations and run contrary to the foundational principles of statutory

interpretation. This is especially the case where Young’s evidence at trial established he was exercising control over the Mary Shauna. [ 37 ] Young testified he operated the Nicole Daniel for Gauvin, and Lindsay Crocker operated the Mary Shauna . They had an arrangement whereby they would share the combined quota under their respective licences. The fishers would fish together and crew would “intermingle” between the two vessels. Each captain would declare the fish landed by their vessel against the quota on the licence associated with their vessel.

The fish was then sold to the fish plant which was owned by 3Ts, a company in which Young is a director and manager (see pages 164-165 and 217 of the trial transcript). [ 38 ] Payment for the fish would be divided, with sixty percent going back to 3Ts and forty percent would be shared between the crews of the two vessels, with Young taking a double share. Young indicated he received the double share because “I’m the captain of the boat, and the owner. Because I’m supposed to be the boss, I guess.” Mr. Crocker did not receive an increased share as the captain of the Mary Shauna .

Young referred to the payment to the crews as “payroll”, which was taken care of by 3Ts (see pp. 166-168, 206, and 215-217 of the trial transcript). Analysis [ 39 ] As noted by the Crown in their factum, a major objective of the Fisheries Act and the Regulations is to properly manage and control the commercial fishery (see R. v. Savory , [1992] N.S.J. No. 3, 1990 CarswellNS 104 (N.S.C.A.), at para. 14 ; R. v. Ulybel Enterprises Ltd ., 2001 SCC 56 , at para. 24 ). [ 40 ] A more fulsome explanation was provided by Cameron, J.A.( dissenting) in R. v.

Boutcher , 2001 NFCA 33 , at paragraph 164 : One of the objects of the Fisheries Act is to conserve the various species of fish. The method chosen is to make all harvesting of fish illegal except as permitted under the Act or Regulations . Generally speaking this is accomplished by a licencing scheme which limits who may fish, when they may fish, where fish may be taken, how fish may be taken, and how much fish of various species may be taken. [ 41 ] So when interpreting the wording in

section 13 , a court cannot examine the phrase “use a vessel” without doing so in the context of the activity of “fishing”. This includes the use of the word “operator” in section 13(2). While the

section is silent regarding the concept of one fisher assisting or aiding another fisher in the act of fishing, I find that the use and operation of a vessel is merely one aspect of the continuum of fishing. [ 42 ] Fishing is defined by the Fisheries Act and has been interpreted on many occasions by Canadian courts. The most often cited definition of “fishing” is from the decision of The Ship Frederick Gerring Jr. v.

R . (1897), 1897 CanLII 84 (SCC) , 27 S.C.R. 271, at pp. 280 to 281: The question is whether this vessel was "fishing," when, for two hours or more, her crew were baling, or scooping out, by means of a dip-net, from the area of water surrounded by the seine, the one hundred and thirty barrels (more or less) of mackerel which they finally secured. The act of fishing is a pursuit consisting, not of a single but of many acts according to the nature of the fishing. It is not the isolated act alone whether of surrounding the fish by the net, or by taking them out of the water and obtaining manual custody of them.

It is a continuous process beginning from the time when the preliminary preparations are being made for the taking of the 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. [ 43 ] In the present appeal, Gauvin and Young argue they were assisting or aiding Crocker, the operator of the Mary Shauna .

Such an activity is permissible when the word “ use ” ( section 13(1) ) is read in conjunction with the word “ operate ” ( section 13(2)) as it limits its meaning to “the primary actor engaged in the fishing activity or the person exercising control over or operating the vessel”; in this case Crocker and the Mary Shauna . [ 44 ] So, when Young was operating the Nicole Daniel and used its seine and suction hose to remove herring from the water to place them in the Mary Shauna , Crocker was the operator of the vessel, not Young and the Nicole Daniel. [ 45 ] Section 14(2)(

c) of the Atlantic Fisheries Regulations sets out the authority for crew members not named in a licence to fish for a species covered by those Regulations . During oral submissions, counsel for Gauvin and Young argued that Parliament never intended the operation provisions under section 13(1) to cover crewmembers; consequently, the actions of Gauvin and Young were no different. [ 46 ] The word “operate” in the context of fisheries legislation has been given some judicial consideration. In the New Brunswick Queen’s Bench decision of R. v. Turbide , [1986] N.B.J.

No. 679, 1986 CarswellNB 362 (Q.B.), at paragraph 6 , Justice Creghan wrote: 6 . To my mind the plain meaning of the word "operate" in the context of a vessel, and therefore in the context of this offence, is not analogous to the operation of a motor vehicle. Although by times possible and done, a vessel does not inherently lend itself to individual operation by working the mechanisms which control the boat as is the case in the operation of a motor vehicle.

The operation of a vessel connotes a captain or a person in charge and by extention further connotes the possibility of a crew or other persons who assist in the operation of the vessel under the direction of the person in charge. To my mind any or all of these persons are involved in the operation of the vessel, either in the role of directing its operation by commanding others or by the actual working of the mechanisms or procedures which control the boat or enable it to function. [ 47 ] I note in passing that The Ship Frederick Gerring Jr. case involved an American fishing schooner, which used a purse seine .

The trial evidence established that two men in a dory held one end of the seine while others in a seine boat let out the net as the seine boat made a circle enclosing the fish. When the circle was complete the seine was closed at the bottom (pursing the seine) making, in effect, a bag or purse of fish. The purse, which was open at the top, was then made smaller and smaller and the fish were "baled" out of

the seine onto the "Frederick Gerring Jr.", which by then had come alongside the seine. [48] A more recent example is in R. v. Weir (1993), (NL SC), 110 Nfld. & P.E.I.R. 121 (Nfld. S.C.(T.D.)), aff’d(1995), (NL CA), 125 Nfld. & P.E.I.R. 96 (Nfld. C.A.), where the “Frederick Gerring Jr.” reasoning was applied byPuddester, J. to a case very similar, except that it was a group of different individuals who, using smaller boats, joined with Mr. Weir'slarger vessel, the "Natasha II", to catch caplin by the use of purse seines.

On some occasions the caplin were transferred from the smallerboats to the "Natasha II"; on others they were transferred from the seine to the "Natasha II". While not expressing an opinion respectingthe transfer from one boat to another, Puddester, J. found that the transfer from the seine to the "Natasha II" was part of fishing. Atparagraph 47, he summarized the relevant case law as follows: 47 However, in my view the analysis in Gerring and the other cases makes clear that it is the particular activity which is to beconsidered, not the number of vessels involved in it.

The division of the process among two or more vessels does not affect the reasoningin those cases, and which is applicable under the legislation here. These cases make clear that the physical activity or process of initialremoval of the fish from the water, and thus of reducing them into secure possession out of that habitat, constitutes a part of thecontinuum of "fishing".

In other words, without that final step it cannot be said that the process of "fishing" is complete in fact or in law.While the situation may well be different where the fish are first brought on board one craft and then in effect transferred or transshippedfrom it to another vessel, as on the evidence was in some cases the situation here, I conclude that on the authorities cited to me, at leastpart of the activity of the Natasha II here, in the circumstances described in the evidence and on the facts found by the learned trialjudge, constituted an aspect of the "fishing" process with respect to the caplin in question. [49] In the matter at hand, the evidence at trial was unequivocal; the seine belonged to Gauvin and the Nicole Daniel, as did thesuction hose used to remove herring from the seine and place them in the Mary Shauna.

This constituted the continuum of the act offishing by a vessel under the command and direction of Young and licensed to Gauvin. For the purposes of this particular fishing venture,Young was directing Crocker and the Mary Shauna through a pre-arranged agreement for which he was later compensated by Crockeronce the herring were landed. [50] The activity of using the Nicole Daniel’s seine and suction hose was clearly used as part of the enterprise of fishing that wasintended to be addressed by the wording of section 13(1) of the AFR.

This was not an instance where Young was operating the NicoleDaniel and happened to come upon Crocker and the Mary Shauna while he was independently fishing their own quota, and through aselfless act of altruism aided and assisted the Mary Shauna in catching its quota. [51] Rather, I conclude the evidence supports it was part of a pre-arranged profit making fishing enterprise involving all threevessels with Young (1) advising Crocker when to leave port with the Mary Shauna; (2) directing the removal of the fish from the seineand pumping it onto the Mary Shauna and its skiff; and (3) receiving a double of the proceeds from all three vessels (see the evidence ofTodd Young at pp. 166, 179-182 and 216). [52] As Young was also acting as the agent and operator for Gauvin pursuant to sections 78.3 and 78.4 of the Fisheries Act, liabilityfor his actions attaches to the corporate licence holder Gauvin (see Griffin v.

R, 2018 PECA 21, at para. 20). [53] Accordingly, I find the trial judge met the standard of correctness when interpreting the wording of section 13(1)(

c) inconvicting Gauvin and Young. This ground of appeal is dismissed. Issue 3: Did the trial judge err in convicting Crocker, Young and Gauvin for “using” a vessel in fishing which had not beenissued a registration card?

The position of the parties Crocker, Young and Gauvin [54] Relying on the testimony of Fishery Officer Chad Howse at trial, Crocker argues the evidence disclosed the skiff bearing CFV#139192 ( “the skiff”) was used as fishing equipment to assist the registered fishing vessel, the Mary Shauna, and therefore, was notrequired to be issued a registration card (see trial transcript pp. 27, 48-49, and 51-52). [55] The trial judge committed a palpable and overriding error when concluding that the skiff was a vessel engaged in fishing withinthe meaning of

section 13 of the AFR when the only activity it engaged in was the transportation of the Mary Shauna’s catch back toport by means of being towed by the Mary Shauna. The Crown [56] The Crown asserts that

section 13 of the AFR allows for two exceptions, neither of which apply in the instant case. While thereis no definition of a “vessel” in the Fisheries Act and Regulations, there is a definition of a “fishing vessel” contained in

section 2 of theFisheries Act: "Fishing vessel" means any vessel used, outfitted or designed for the purpose of catching, processing or transporting fish; ("bateau depêche"). [57] Evidence adduced at trial established the skiff had been previously registered to Crocker but it had been removed and replacedby the Mary Shauna a month previous (see trial transcript evidence of Chad Howse at pp. 8-9, and 15; evidence of Todd Young at pp.185-186; and Trial Exhibit #3). During the incident on November 30, 2016, the skiff was used to hold apart the two larger vessels fromcrushing the seine and was used to accept fish from the seine and transport them back to port.

[ 58 ] The Crown referred this Court to the decision in R. v. Kelly , 2003 NBQB 148 which involved an appeal by the Crown from an acquittal on a charge of fishing with an unregistered vessel. Kelly was observed fishing using two scows; a small motorized scow which was pulling a larger scow. While fishing, the larger scow was detached from the smaller one. The small scow was registered. Kelly was acquitted on the basis that the large scow did not meet the regulatory definition of vessel as it was not motorized and was only used to carry the fish.

The appeal was allowed on the basis that according to the statutory definition of fishing, the large scow was used in fishing and the Regulations required that a vessel used in fishing be registered. At paragraph 20 the appeal court made the following finding: Section 4(1) of the Maritime Provinces Fishery Regulation requires that a vessel used in fishing must have a vessel registration card. I made reference above to the decision of Justice Sedgewick in the case of "Frederick Gerring Jr." (The) v. R. (1897), 1897 CanLII 84 (SCC) , 27 S.C.R. 271 (S.C.C.) which described the act of fishing.

Under the concept of fishing as described in the Gerring case and in accordance with the definition of "fishing" in the Fisheries Act the larger scow was used in fishing. The Regulations prohibit fishing unless a person is licenced. When a vessel is used in fishing the Regulations require it to have a vessel registration card issued for that vessel. No vessel registration card was issued for the larger scow in the present matter. It is a vessel and it was at all material times used in fishing.

Analysis [ 59 ] Based on the reasoning in Kelly , I accept the Crown’s argument that the Fisheries Act or the accompanying Regulations do not reference a skiff or an exception noted for a vessel used as “fishing equipment”. Accordingly, I find the skiff CFV# 139192 was a “fishing vessel” pursuant to

section 2 of the Fisheries Act and was used to “catch” and “transport” fish on the night of November 30, 2016, contrary to

section 13 of the AFR . [ 60 ] Therefore, this ground of appeal is dismissed. Issue 4: Did the trial judge err in relying upon his own research in establishing a fact upon which he convicted Crocker? The position of the parties Crocker [ 61 ] Crocker appeals the trial judge’s finding he failed to accurately complete his fishing log because he recorded that the herring were caught using a tuck seine when the fish removed from the water were from a purse seine. He does so on the basis that the trial judge did not explicitly accept or reject Young’s evidence that the two types of net were identical.

Instead, he relied on an online dictionary definition of tuck seine to convict Crocker without permitting the parties the opportunity to lead further evidence, thus committing a reversible error. The Crown [ 62 ] The Crown argues the trial judge did not err when relying on a dictionary definition when reaching his conclusion there was a distinction between the two seines. Judges are permitted to take judicial notice of reliable dictionary meanings without further proof.

Alternatively, should I find the judge erred then I should invoke the curative proviso of section 686(1) (b)(iii) of the Criminal Code and hold that there is no realistic possibility that a new trial would produce a different verdict. Analysis [ 63 ] In the recent decision of Nevusun Resources Ltd. v. Araya , 2020 SCC 5 , Justices Brown and Rowe, while dissenting in part from the majority, made the following incisive comments in dicta at paragraph 177: Much of Canadian civil procedure depends on the distinction between law and facts.

Facts are pled, but law is not; facts are determined through evidence, but law is not; facts cannot be settled on a motion to strike or

summary judgment, but law can; factual findings by a trier of fact are deferred to by appellate courts; legal conclusions are not. Perhaps most importantly, judges cannot determine matters of fact without evidence led by the parties (except where judicial notice applies), but can decide questions of law. Judges doing their own research on law is not only accepted, but expected. Judges doing their own research facts is impermissible. [ 64 ] The logic behind these comments is obvious, as stated by Jesse Shiedlower, the editor at large of the Oxford English Dictionary in an

article from the New York Times titled “Justices Turning More Frequently to Dictionary, And Not Just for Big Words” published June 13, 2011: Dictionary

definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them. [ 65 ] This case is an example of such an instance.

Section 2 of the AFR defines seine as follows: "seine" means a net that hangs vertically in the water with floats attached at the top of the net and weights attached at the bottom, the ends of which are brought together or hauled ashore, and includes a bar seine, beach seine, drag seine or other similar type of net, but does not include a purse seine ; ("seine"). [emphasis added] Extracts from the Atlantic Fisheries Regulations , 1985 SOR 86-21

[66] The Crown acknowledges that the statutory definition of a seine and the specific exclusion of a purse seine from the broaderdefinition was not addressed by any of the witnesses or submissions at trial. [67] In the decision R. v. Feltham (1997), (NL SC), 151 Nfld. & P.E.I.R. 239, [1997] N.J. No. 109 (Nfld.

S.C.(T.D.), at paragraphs 28 to 32, Easton, J., sitting as an appellate judge, heard a Crown appeal from an acquittal in which the respondentwas charged with unlawfully fishing using a caplin purse seine while not being the holder of a licence to fish for that species with thattype of fishing gear. [68] The issue at trial was whether the gear used by the respondent was a mobile or fixed gear. The respondent was licensed forfixed gear only.

The evidence at trial was inconclusive whether a purse seine was a mobile or fixed gear and the trial judge resolved it infavour of the respondent. [69] Easton, J. upheld the acquittal given the confusion and ambiguity as to the definition of a purse seine.

At paragraphs 29 to 32he noted the following: The trial judge pointed out that there is no definition of a purse seine in the Regulations because that definition was revoked in 1985 anddeals with the Crown's suggestion that because the Respondent's fishing apparatus: ...had rings at the bottom and a rope running through these rings which could be used to theoretically draw the net shut at the bottom,then it must be a purse seine". [70] At one time there had been a definition of purse seine which read: “Means a net that is (

a) floated at the top, weighted at the bottom and mounted with rings through which a line is run; (

b) set from avessel so as to enclose an area of water, and (

c) capable of being closed at the bottom by drawing a line through the rings to form a purseor bag." The definition of fixed gear and purse seines were revoked by S.O.R. 86-23 dated December 19, 1985 and the trial judge points out thatthere was an explanatory note at the end of the 1985 Regulations which read: This note is not part of the Regulations, but is intended only for information purposes. These amendments (

a) revoke provisions that areno longer required, (

b) revoke provisions that are now dealt with in the Atlantic Fishery Regulations, 1985, and (

c) make changes for aconsistency with the Atlantic Fishery Regulations of 1985." [71] Easton, J. then went on to find that: "...the only thing that I can read from all of that is that somebody concluded that the provision was no longer required." The Trial judge reiterated that the burden lay upon the Crown to prove; firstly: ... what is a purse seine at this point in time and secondly, to show beyond a reasonable doubt that Mr.

Feltham was acting or fishing inviolation of a condition of his license." [72] In the appeal before me, the Crown argues the trial judge, besides hearing testimony from Young regarding the definition ofthe two types of seines, also heard from Fisheries Officer Chad Howse. Mr. Howse testified that a tuck seine was generally smaller thana purse seine. Unfortunately, the definition of seine in

section 2 of the AFR does not provide any reference to the dimensions of the net. [73] As a result, the trial judge resorted to an online definition of the term that described the length. At paragraphs 92 to 94 he drewthe following conclusion: 92 A tuck seine is "a seine about 70 fathoms long and very deep in the middle that is used to take fish from a larger seine" (seehttps://www.merriam-webster.com). In this case, as we have seen, Mr.

Crocker's fishing licence limited him to the use of a seine of a"maximum of 120 fathoms in length." 93 As can be seen, there are some similarities between the two seines, but a tuck seine is smaller than a purse seine. It is utilized bysmaller vessels like the Mary Shauna. A purse seine is larger and is utilized by vessels like the Nicole Daniel. Mr. Crocker's licencerequired that he use a smaller type seine: a seine with a maximum of 120 fathoms in length. His quota was set at 350,000 pounds ofherring, much less than the quota awarded to the Nicole Daniel.

A smaller seine was consistent with the Mary Shauna's quota. Thus, Iconclude that a distinction between the two seines can be made. 94 In this case, the fish landed by Mr. Crocker and the Mary Shauna was caught by the Nicole Daniel using a purse seine. WhenMr. Crocker completed his log book, he referred to the fish having been caught by a tuck seine. He purposely and inaccuratelycompleted his log book to cover-up the illegal fishing. Thus he must be convicted of having breached section 22(7) of the Fishery

(General) Regulations . [ 74 ] In Feltham , the Court accepted various descriptions of bar seines and purse seines as provided through testimony of experienced fisherman. At paragraph 44, Easton, J. referenced the evidence of one fisherman who noted that a purse seine could be 120 fathoms long and 15 fathoms deep.

In dismissing the Crown’s appeal Easton, J. noted that the parties had not provided the Court with any reliable definition and agreed that the Crown had the ultimate responsibility to prove beyond a reasonable doubt that the respondent committed the offence. [ 75 ] In the present appeal, Crocker’s licence limited his use of a seine up to a maximum of 120 fathoms. There was no factual evidence led to distinguish whether a tuck seine could be identical to a purse seine depending on its length and depth.

Instead, the trial judge resorted to a dictionary definition without permitting both parties the opportunity to provide submissions especially given the confusion surrounding the

definitions as evidenced in Feltham . [ 76 ] I find the trial judge made a palpable and overriding error in finding that Crocker “purposely and intentionally completed his log book to cover up the illegal fishing” when he relied on an online dictionary definition rather than allowing the parties to make further submissions on the distinction. [ 77 ] I do not agree with the Crown’s position that I should invoke the curative proviso of section 686(1) (b)(iii) of the Criminal Code and hold that there is no realistic possibility that a new trial would produce a different verdict.

As a consequence I am ordering a new trial on the charge Crocker breached section 22(7) of the FGR when entering the term tuck seine rather than purse seine in his log book. Issue 5: Did the trial judge err in ordering the forfeiture of the skiff belonging to the Mary Shauna CFV# 139192? The position of the parties Crocker [ 78 ] Counsel for Crocker argues the trial judge committed two errors when making the forfeiture order pertaining to the “skiff”: (1) he failed to consider its value; and (2) he erroneously found Young, Gauvin and Crocker were engaged in a “serious scheme of illegal fishing”.

By so doing, he overemphasized the principles of general and specific deterrence as they relate to the purpose of conservation under the Fisheries Act . The Crown [ 79 ] Regarding the value of the “skiff”, the Crown acknowledges the trial judge was not presented with any evidence at the sentencing hearing that could be reasonably relied upon.

In fact, the trial judge remarked to counsel that the estimates provided to the court were unsubstantiated submissions by counsel that would be given little weight (see sentencing hearing transcript, p. 274). [ 80 ] As for the trial judge’s emphasis on the principals of general and specific deterrence, these are guiding factors that not only support the conservation objectives of the Act but also the broader scheme of reporting, registration and licensing restrictions required to monitor the resource.

Analysis [ 81 ] The issue of forfeiture in this appeal is governed by section 72(1) of the Fisheries Act , which allows for a discretionary order of forfeiture to be made on sentence: Forfeiture of things 72

(1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that any thing seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from its disposition, be forfeited to Her Majesty. [ 82 ]

Section 86 of the Fisheries Act directs that an order under section 72(1) shall be considered a sentence within the meaning of

section 673 and

section 785 of the Criminal Code . The forfeiture order is therefore reviewable on an appeal against sentence. An appeal of sentence is governed by

section 687 of the Criminal Code : 687

(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. [ 83 ] The standard to be applied by an appellate court when conducting a sentencing review has been well established by the Supreme Court of Canada in several decisions, the most recent of which being R. v. Suter , 2018 SCC 34 . At paragraphs 23 and 24 the court stated as follows: [23] It is well established that appellate courts cannot interfere with sentencing decisions lightly ...

This is because Trial Judges have “broad discretion to impose the sentence they consider appropriate within the limits established by law” ( Lacasse , at para. 39 ). [24] In Lacasse , a majority of this Court held that an appellate court could only interfere with a sentence in one of two situations: (1) where the sentence imposed by the sentencing judge is “demonstrably unfit” (para. 41); or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error has an

impact on the sentence imposed (para. 44). In both situations, the appellate court may set aside the sentence and conduct its own analysisto determine a fit sentence in the circumstances. [84] Our Court of Appeal has examined the role of forfeiture in the context of regulatory prosecution in two decisions: R. v. Oates,2004 NLCA 6 and R. v. Saunders, 2014 NLCA 39.

The cumulative effect of these decisions is that forfeiture is to be considered a specialremedy (in rem) available to the Crown to address the specific status of an item of property used in the commission of an offence (seepara. 27 of Oates; and para. 9 of Saunders). [85] Crocker’s legal counsel’s characterization that the offences were merely “administrative or technical in nature” diminishes theimportance of the evidence established at trial that the parties were clearly operating under a pre-arranged enterprise.

The trial judgeconcluded this arrangement constituted a “serious scheme of illegal fishing”. [86] I accept the Crown’s position that the communal fishing enterprise undertaken by the appellants undermined the purpose andassociated regulatory scheme established under the Fisheries Act and the Atlantic Fisheries Regulations. In circumstances such as thiscase the Court must apply the sentencing objectives of specific and general deterrence (see R. v.

Henneberry, 2019 NSSC 119, at para.28). [87] At paragraph 38 of the sentencing decision, the trial judge writes that forfeiture “must” be considered apart from any fineimposed while the wording in section 72(1) uses the word “may” to indicate the Court’s power to impose forfeiture: 38 The use of the words "in addition to any other punishment imposed" suggests that an order of forfeiture must be considered apartfrom any fine which is imposed.

A sentencing judge can consider totality, but the imposition of a forfeiture order should not result in theimposition of a fine which fails to reflect the seriousness of the offence and the responsibility of the offender for committing the offence.In R. v. Weir, (NL SC), [2000] N.J. No. 4 (S.C.), it was suggested that forfeiture "should be considered as anadditional punishment for the more severe cases dealing with breaches of regulatory offences" (at paragraph 38). [88] In Ruby v. Canada (Solicitor General) (CA), (FCA), [2000] 3 F.C. 589, [2000] F.C.J.

No 779 (C.A.), atparagraphs 54 to 55, the court had the following to say about the use of the word “may” in the context of statutory

interpretation: 54 It is true that the word "may" is often a signal that a margin of discretion is given to an administrative or judicial decision maker.The normal

interpretation of this word occurring in a statutory provision is that there is an element of discretion.In many circumstances,the use of the "may" certainly has this effect. However, the word should not be treated like a ritualistic talisman. As Driedger has pointedout, statutory "[w]ords, when read by themselves in the abstract can hardly be said to have meanings". 55 When read in context, "may" can sometimes have functions other than to confer discretion. It is well known that in some cases,"may" can be read as "must", thereby rebutting the presumptive rule that "may" is permissive stated in

section 11 ofthe

Interpretation Act, R.S.C., 1985, c. I-21. That, however, is not all. Thorson J.A.drew attention to the fact that the word "may" cansometimes be no more than a signal from the legislator that an official or tribunal is being empowered to do something. In some contexts,of course, the word "may" is neither necessarily permissive nor necessarily imperative, but rather merely empowering. Its function is toempower some person or authority to do something which, otherwise, that person or authority would be without any power to do.

Thisconstruction of the word "may" has been reaffirmed in recent cases by the Saskatchewan and Ontario Courts of Appeal. [89] In view of the analysis provided in Ruby, I accept the trial judge’s use of the word “must” at paragraph 38 to mean he felt hewas empowered under section 72(1) to do something that he would have been unable to do on sentencing, namely issue a forfeitureorder. [90] At paragraph 44 of the trial judge’s reasons he references the submissions of the Crown regarding the issues of fines andforfeiture: 44 The Crown submitted that if I order forfeiture of the vessel, I should impose a fine in the area of $1,000.00 upon each accused.

IfI decide not to order forfeiture of the vessel, then I should impose fines in the area of $5,000.00 upon Mr. Young and the Company and afine in the range of $3,000.00 to $5,000.00 upon Mr. Crocker. [91] Later at paragraph 54 he references his own decision in R. v. Cox, [2007] N.J. No. 71, 2007 CarswellNfld 68 (P.C.), as supportfor the proposition that there should be evidence placed before the Court by the Defence and the Crown regarding the value of the itemseized prior to granting a forfeiture order: 54 In R. v. Cox, [2007] N.J.

No. 71 (P.C.), I considered forfeiture of items when a monetary value was not provided. I concludedthat if "counsel seeks to persuade a Court that a seized item is of such a large monetary value that its forfeiture would offend theprinciples of sentencing or that its forfeiture should result in a reduced fine, then counsel must establish the value of the item forwhich forfeiture is sought" (at paragraph 20).

I would add that when the Crown seeks forfeiture of an item, it should be able to explain itsestimate of value. [92] However, at paragraph 76, he concludes he was not required to have such evidence before him in exercising his discretion tomake a forfeiture order: 76 Though the exact value of the vessel has not been established, I do not view this as a factor against a forfeiture order. Even if thevalue of the vessel is $30,000.00, the vessel was purposely placed at risk of forfeiture by the offenders. I conclude that this is anappropriate case to order that the vessel be forfeited to the Crown.

I acknowledge that this is a significant penalty, but I have reachedsuch a conclusion because of the serious scheme of illegal fishing which the offenders participated in and because such an order willpromote the application of both general and specific deterrence and thus, promote the conservation of the species.

[93] Using the Laccase analysis, I must now determine whether the trial judge’s failure to follow his own precedent in Cox andallow evidence of the value of the skiff to be placed before him constitutes an error in principle in that it fails to consider a relevant factor(i.e. the value of the skiff), and whether such an error had an impact on the sentence imposed. [94] I conclude the sentencing judge committed an error in principle, in failing to require further evidence from the Crown and theDefence concerning the value of the skiff as a relevant factor, before making the forfeiture order.

However, I must also find that such anerror has an impact on the sentence imposed before setting aside the sentence and conducting my own analysis to determine a fitsentence. [95] In my view, such an error did not have an impact on the sentence imposed. As noted above at paragraph 38 of his reasons, thetrial judge cited the decision in R. v. Weir (1990), (NL SC), 185 Nfld. & P.E.I.R. 238, [2000] N.J. No. 4 (Nfld. S.C.(T.D.)) for the proposition that forfeiture "should be considered as an additional punishment for the more severe cases dealing withbreaches of regulatory offences”.

At paragraph 38 in Weir, Dymond, J. stated the following: 38 Forfeiture should be considered as an additional punishment for the more severe cases dealing with breaches of regulatoryoffences under the Fisheries Act, the Wildlife Act, other Provincial or Federal legislation such as the Customs Act or the Excise Act.

Casesdealing with fishing or hunting commercially where there is a profit motivation, or in cases of using vehicles such as ATVs orsnowmobiles to harass wildlife are cases where it may be necessary to include as part of the punishment, a forfeiture order, as a fine orother forms of deterrent may not be adequate. [96] Having upheld the trial judge’s

interpretation of section 13(1)(

c) of the AFR in light of the evidence produced at trial, I cannotconclude that the offences Crocker was convicted of were “administrative or technical in nature”.

While I may not have used the trialjudge’s description of Crocker’s actions as a “serious scheme of illegal fishing” I do, nonetheless, accept that what occurred hereconstituted a commercial fishing enterprise in which there was a profit motivation at the heart of the offences for which Crocker wasconvicted. [97] Accordingly, I conclude the trial judge’s application of the purpose of forfeiture as described in Weir was a fit sentence andtherefore this ground of appeal is dismissed.

CONCLUSION [98] In the result, the appeal is dismissed, save and except, the conviction under section 22(7) of the FGR (failure to complete theGeneral Fishing Log) where I have ordered a new trial. _____________________________ Peter N. Browne Justice