R. v. Thompson, 2011 NSPC 64

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Thompson, 2011 NSPC 64 Date : 20110707 Docket : 2123879, 2323880, 2123881 Registry : Pictou Between: Her Majesty the Queen v. Bryce Thompson and Kevin Thompson Judge: The Honourable Judge Del Atwood Heard: July 7, 2011 Charge:

Section 78 Fisheries Act Counsel: Richard Goodman, for the Crown Bryce Thompson, self-represented Kevin Thompson, self-represented ORALLY : [ 1 ] I ’ m going to deal first with the Gerald Kevin Thompson matter in relation to the charge under s. 22(7) of the Fishery General Regulations : “failing to comply with a condition of license to wit: exceeded the maximum amount of 4,536 kilograms of herring to be offloaded during the 24-hour period contrary to s. 22(7) of the Fishery General Regulations. ”

[2] An essential element of that offence is .... and this a strict liability offence so that it does carry a standard of proof beyond areasonable doubt, excluding, obviously, mens rea. Mens rea is not an essential element of this offence. There is a due diligence defenceavailable under the Fisheries Act, to Mr. Gerald Kevin Thompson, in relation to that matter. In the court’s view, this particular chargedoes not progress to that stage. The Crown must prove beyond a reasonable doubt that Mr.

Thompson exceeded the maximum amount of4,536 kilograms of herring to be off-loaded during a 24-hour period. [3] The evidence that has been submitted to the court in support of that proposition is Exhibit #9 which was an invoice prepared, inpart , by Elaine Perry , purporting to set out the weight of a quantity of fresh herring delivered by Gerald Thompson to the Baker’s PointFisheries plant in Jeddore, Halifax County, Province of Nova Scotia.

This, indeed, is an authentic business record and it does offer someproof of the truth of its contents, and the court obviously relies on the applicable provisions of the legislation as well as s. 30 of theCanada Evidence Act, and the court takes into account admissibility of business record case law, the leading authority obviously beingthe decision of the Supreme Court of Canada in Ares and Venner.

But admissibility does not lead inevitably to accuracy. [4] In this particular case, although the evidence of Exhibit #9 affords some evidence of the truth of its contents, the court observes thefollowing problematic features in relation to the reliability of that record. Ms. Perry was not the individual who performed theweighing. Ms. Perry, indeed, does not know who performed the weighing. Ms. Perry simply recorded figures that were relayed to her insome fashion. She believed that it was information that was relayed to her by her sister, and I’m referring to page 83 of the Transcript ofEvidence.

However, she was not certain as to that point and was not certain as to the interlineation through the figure “12,658" or as tothe entry of the “9,760" figure in the quantity column on the lefthand margin of Exhibit #9. [5] In the court’s view, the court can assign very little weight to the accuracy of that record. In the court’s view, the evidence beforethe court does little to authenticate the accuracy of the record. The court has no information from Ms. Perry, other than speculation, as tothe source of the information. Did Ms.

Perry record information that was relayed to her by the individual who did the weighing? Alternatively, was she recording information that was relayed to her by someone who had received the information from the weigher? Itis absolutely unclear from Ms. Perry’s evidence how the accuracy of the weight of the herring delivered by Mr. Thompson might beverified.

In any event, because of this uncertainty as to the accuracy of the business record, the court is not satisfied beyond a reasonabledoubt as to the proof of whether the quantity of herring that was offloaded by Captain Gerald Kevin Thompson exceeded the maximumamount of 4,536 kilograms.

An acquittal will be entered on that charge. [6] In relation to both Gerald Kevin Thompson and Bryce Eldon Thompson and the charges relating to contravening or failing tocomply with conditions of a license to wit: “off-loading a catch of herring without supervision of a dockside observer”, the court doesfind that the Crown has proven each element of the offence beyond a reasonable doubt; however, with respect to the issue of duediligence, the court directs itself in accordance with the principles that have been well enunciated in the courts in this province andelsewhere, based on R. v. Sault Ste.

Marie, and based on the statutory codification of due diligence in the Fisheries Act. [7]

Section 78.6 of the Fisheries Act serves to codify the common-law defence of due diligence. That particular

section of theFisheries Act states as follows: “No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence toprevent the commission of the offence, or, (

b) reasonably and honestly believed in the existence of fact that, if true, would render thatperson’s conduct innocent.” [8] In considering a defence under s. 78.6(a), the court applies the principles that were well and thoroughly enunciated by Bourgeois Jof the Nova Scotia Supreme Court in R. v. Boyd (2010), 2010 NSSC 417 , 296 N.S.R. (2d) 164. Beginning at paragraph 22of that decision, Bourgeois J. conducts a comprehensive and insightful analysis of s. 78.6.

The Justice states: “In considering a defenceunder s. 78.6(a), it is clear that the actions raised by an accused as being diligence must relate to the actual elements of the chargedoffence.” At this point, Bourgeois J refers to R. v. Alexander, (NL SC), [1997] N.J. No. 19 (C.A.), and the opinionof Green J.A., as he then was : The defence of due diligence requires the acts of diligence to relate to the external elements of the specific offence that is charged. Theaccused must establish on a balance of probabilities that he or she took reasonable steps to avoid committing the statutorily barredactivity.

It is not sufficient simply to act reasonably in the abstract or to take care in a general sense. In R. v. Kurtzman ... and the

citation is given in Justice Bourgeois’ decision quoting from Alexander, Justice Terapolsky observed at page 429 that “the due diligencedefence must relate to the commission of the prohibited act, not some boarder notion of acting reasonably. [9] Bourgeois J. then goes on to review the very pertinent decision of R. v. Croft, 2003 NSCA 109 where Saunders provides thefollowing

summary:

Section 78.6(

a) permits a defence of due diligence.

Section 78.6(

b) allows a defence based on reasonable and honest mistake of fact. This is essentially a statutory codification of the two defences to strict liability offences described in R. v. Sault Ste. Marie (1978) (SCC), 40 C.C.C. (2d) 353 (S.C.C.). Both the trial judge and the SCAC judge recognized that in order to obtain the benefit ofthe due diligence defence, Mr. Croft was obliged to prove on a balance of probabilities that he was duly diligent in fishing for lobster,that is that he had taken all reasonable steps to ensure that his lobster were not undersized or, put another way, that he was in no waynegligent. R. v.

Chapin (1979), (SCC), 45 C.C.C. (2d) 333 (S.C.C.); R. v. Belliveau (1986), 76 N.S.R. (3d) 234(N.S.S.C.,A.D.); R. v. Gerhardt (1989), (NS SC), 91 N.S.R. (2d) 276 (N.S. Co. Ct.). They also recognized that thequestion of whether the appellant took all reasonable steps to avoid violating the Regulation was a question of fact for the trial judge.. [10] In Boyd , Bourgeois J. reversed a verdict of acquittal. That acquittal was based on an erroneous

interpretation of the definition of“fishery” and on an erroneous application of the principle of due diligence. The issue of what constitutes fishing is not live in this trial,but obviously, the issue of due diligence is alive. The

interpretation of the due-diligence defence that had been applied by the trial judgein Boyd engaged the concept of mitigation of damage after voluntarily assuming conduct that clearly engaged a risk of violation of alegal obligation. Bourgeois J. made it extremely clear that mitigation in the aftermath of risk-engaging conduct will not assist a defenceof due diligence.

It is of no assistance to an offender to state “I willingly engaged in risky conduct ; however, having engaged that risk,and that conduct having resulted in the mischief that the state regulation of my conduct was designed to avoid, I sought nevertheless tominimize the negative impact of my conduct”. As was concluded correctly by Bourgeois J., that sort of an argument is not the defenceof due diligence. Rather, the defence of due diligence seeks to avoid the risk. [11] In R . Croft and Russell 2006 NLCA 33, the Newfoundland and Labrador Court of Appeal also adopted this analytical approach.

In Croft and Russell, the fishers in question were engaged, as I recall it, in a crab fishery and proceeded to adopt a practice in relation toonboard processing of their catch that clearly gave rise to a risk of them committing statutory and regulatory violations. Their defencewas that they knew it was risky, but they had a legal opinion backing them up.

The Newfoundland and Labrador Court of Appeal clearlyheld that the defence of due diligence is not oriented toward the minimization of mischief that arises from inherently risk-engagingconduct. [12] In the court’s view, the case involving Gerald Kevin Thompson and Bryce Eldon Thompson does not depict fishers carrying outrisk-engaging conduct. The court would observe this first and foremost: there is absolutely no secret about the commencement of thecommercial herring fishing season. That is a matter of public record.

The court finds as a fact that it would be reasonable for a fisher toassume and expect that those businesses that are engaged in fishery monitoring to be set up and ready to commence operations once theirservices are likely to be required, i.e., after the start of a publicly published fishery. There is no obligation on a fisher under the terms ofthe licenses that were exhibited before the court to provide advance notification as to when those fishers are going out so that they mightensure that a dockside fishery monitor would be present on the spot upon return to the wharf.

The obligation on the fisher is to have adockside monitor present when a catch is being offloaded. The court would observe that the need for a dockside monitor is not a needfor expertise. There is no expertise that is engaged in by the dockside monitor. The dockside monitor merely watches the offloading ofthe vessel and the weighing of the catch on weigh scales. The value added of dockside monitoring, from what the court can gather of theevidence that was offered by the monitors who testified in this trial, Mr. MacKay, Mr. Wong, Ms.

MacKeil, is, essentially, impartialityso as to ensure that the catch is weighed accurately, and to accomplish conservation objectives so as to ensure that quota information isrelayed on a timely basis to the Department of Fisheries and Oceans, whose responsibility it is to measure quota compliance and quotafulfilment. [13] In this particular case, I am satisfied, based on the telephone records before the court, and based on the information that wasprovided by Mr. Gerald Kevin Thompson’s crew member, that Mr.

Gerald Kevin Thompson sought to make contact with a docksidefishery monitor as he was proceeding to steam into port after he had felt that he had met his quota. I am satisfied that it was reasonableon the part of Bryce Kevin Thompson, knowing as he did, that Gerald Kevin Thompson was steaming in ahead of him–and it’s clear thatboth fishers were within a line of sight of each other and it was clear from the evidence of the crewmen of Mr. Bryce Thompson’s vesselthat they were aware that Mr. Gerald Kevin Thompson was steaming in ahead of their vessel–it was reasonable for Mr.

Bryce Thompson,given all of that, to leave it up to Gerald Kevin Thompson to make the call to arrange a dockside monitor. The court can well appreciatethat having multiple fishers placing multiple calls might result in the clearly uneconomical outcome of having several dockside fisheriesmonitors arriving wharf side when only one is required.

[ 14 ] Clearly, the herring fishery is not a not-for-profit operation. These fishers are engaged in this fishery for the purposes of making profit. It was clear from the evidence of Mr. MacKay that the economical use of dockside fishery monitors is important because, ultimately, it is the fishers who pay for the services of dockside fishery monitors. Accordingly, I find that it was reasonable for Bryce Eldon Thompson to have left it up to the first vessel that was making port to make that call. I am satisfied as well that, upon making port and upon Mr. Bryce Thompson and his crewmember, Mr.

Scott Simpson, being aware of the fact that Mr. Gerald Kevin Thompson had not been able to rouse a dockside fishery monitor, Bryce Eldon Thompson and his crewmen made similar efforts. I find that it is clear from the evidence of Mr. MacKay and from the evidence of Mr. Wong and from the evidence of Corrine MacKeil that the dockside fishery monitoring businesses that serviced this area simply were not ready for the startup of that herring fishery, notwithstanding that the start date would have been well known to those monitoring businesses.

The start date of that fishery was no state secret; it was well known and well publicized. [ 15 ] I am satisfied that both Bryce Eldon Thompson and Gerald Kevin Thompson, and I find this as a fact, made exhaustive efforts to attempt to contact a dockside monitor. As Mr. Simpson put it very clearly, these fishers were not seeking to “ take a gamble. ” They were trying to avoid violation of the licencing requirements of their respective fishery licenses, and it was only after having waited several hours and after having obtained no co-operation whatsoever from Mr.

MacKay who clearly – and I ’ m not saying this to dress down Mr. MacKay, I am merely stating a fact admitted by Mr. MacKay, himself – clearly was under the influence of alcohol on the morning in question, that the Thompsons decided they could not wait any longer. There ’ s no crime in someone going out of an evening and enjoying himself; but it is very clear that Mr.

MacKay was in charge of that monitoring business, was in no condition to carry out monitoring work, himself, at that time, and for whatever reason was simply unable to rouse any of his employees to go to the Lismore Wharf and monitor this offloading operation. [ 16 ] The court finds as well that there were, indeed, significant pressures that were being faced by both Gerald Kevin Thompson and Bryce Thompson. As was explained by Mr. Simpson, while they ’ re waiting to offload, their vessels were in the water and the engines had to be kept running.

If vessels are not kept running while laden down with a catch on board, there is a real and substantial risk of engine damage due to salt-water infiltration. On the morning in question, the court is satisfied, based on the consistent evidence of the witnesses who were present at that scene, the ambient temperature was warm and the risk of spoilage of that catch was very real and substantial. The court is satisfied as well that both Thompsons were confronted with a fish buyer, Mr. Kevin MacGillivray, who wanted that catch offloaded and offloaded right away as he wanted fresh fish; if Mr. Bryce Thompson and Mr.

Gerald Kevin Thompson had not offloaded that catch, they would have lost Kevin MacGillivray as a buyer. They would presumably then have had to steam to another wharf to locate another buyer, all the while their catch proceeding to spoil. [ 17 ] In the court ’ s view, the ample evidence of due diligence that was exercised by both of these captains went directly to avoiding the prohibited conduct. In my view, applying the principles set out in R. v. Boyd as enunciated by Bourgeois J, and also in R. v.

Croft as enunciated by Saunders, I am satisfied, even if the threshold were proof beyond a reasonable doubt, I would be satisfied beyond a reasonable doubt that both of these captains have offered evidence of due diligence as to their conduct, and having proven the defence of due diligence ... first of all, in relation to Gerald Kevin Thompson in the absence of proof beyond a reasonable doubt as to the quantity of the catch, I would acquit Gerald Kevin Thompson of the second count which is case #2123881.

Being satisfied that Gerald Kevin Thompson has met the evidentiary obligation in relation to proof of due diligence, I would find Mr. Gerald Kevin Thompson not guilty of the offence, count #1, case #2123880; and furthermore, in relation to Bryce Eldon Thompson, being satisfied on the balance of probabilities that Bryce Eldon Thompson has fulfilled the requirements for proof of due diligence, both of common law and under statute, I would find Mr. Bryce Eldon Thompson not guilty of case #2123879. [ 18 ] Anything further for Bryce Eldon Thompson or Gerald Kevin Thompson? [ 19 ] Mr.

Goodman : No, thank you, Your Honour. [ 20 ] The Court : Okay, thank you very much. Mr. Bryce Thompson and Mr. Kevin Thompson, you have been found not guilty of these offences. Your obligation to the court is concluded in relation to these matters and you ’ re free to go. [ 21 ] Mr. Gerald Kevin Thompson : Thank you very much.

[ 22 ] Mr. Bryce Eldon Thompson : Thank you for your patience. [ 23 ] The Court : Thank you. And I do appreciate ... I will say that the court greatly appreciates the thorough way in which Mr. Goodman and both Gerald Kevin Thompson and Bryce Thompson presented this matter. A lot of times, when the court is dealing with self-represented accuseds, it turns into a circus. That was not the case this time. This matter was both prosecuted and defended in a very orderly, complete and respectful fashion and it made the decision-making process much easier for the court and I ’ m grateful to all of you. [ 24 ] Mr.

Gerald Thompson and Mr. Bryce Thompson : Thank you very much. [ 25 ] Mr. Goodman : Thank you, Your Honour. CERTIFICATE OF COURT TRANSCRIBER I, Sally Cunningham, Court Transcriber, hereby certify that I have transcribed the foregoing and that it is a true and accurate Transcript of the Decision of July 7, 2011 between Her Majesty the Queen and Bryce Thompson and Kevin Thompson taken by way of electronic tape recording. September 23 , 2011 _________________________ Sally Cunningham Cert. No. 2006-202