R. v.Henneberry, 2016 NSPC 6

Provincial Court of Nova Scotia Citation: R. v.Henneberry 2016 NSPC 6 Date: February 5, 2016 Docket: 2704980 Registry: Halifax Between: Her Majesty the Queen V. Tyler Patrick Henneberry Decision ON TRIAL Judge: The Honourable Judge Marc C. Chisholm Heard: December 5, 2014; June 29, 2015; July 6, 2015; October 9, 2015; December 15, 2015 Decision: February 5, 2016 Charge

Section 78 Fisheries Act and Section 22(7) Fishery (General) Regulations Counsel: Ronda Vanderhoek, for the Crown Stan MacDonald, for the Defendant By the Court: Introduction 1 ) Tyler Patrick Henneberry was charged that he on or about the 23 rd of December, 2013, at or near Fishing Zone 3PS, within Canadian fisheries waters adjacent to Nova Scotia, did, while carrying out an activity under the authority of a licence, contravene any condition of the licence, to wit failed to hail the accurate round weight of fish on board the vessel by individual species, contrary to s. 22(7) of the Fishery (General) Regulations, SOR/93-53, thereby committing an offence under s. 78 of the Fisheries Act .

The Legislative Context 2 ) The Fisheries Act , RSC 1985, c. F-14, s. 78 provides: 78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or (

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. 3 )

Section 78.6 of the Fisheries Act states: 78.6 No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence to prevent the commission of the offence; or (

b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent. 4 )

Section 43 of the Act delegates authority under the Act to the Governor in Counsel to make regulations in relation to, inter- alia:

a) For the proper management and control of the seacoast and inland fisheries; and

b) Respecting the conservation and protection of fish; and

c) Respecting the terms and conditions under which a license … may be issued. 5 ) On February 4, 1993, Fishery (General) Regulations (SOR/93-53) were proclaimed. 6 ) Section 22(1) of Fishery (General) Regulations states: 22.

(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters: (

a) the species of fish and quantities thereof that are permitted to be taken or transported; (

b) the age, sex, stage of development or size of fish that are permitted to be taken or transported; (

c) the waters in which fishing is permitted to be carried out; (

d) the location from which and to which fish is permitted to be transported; (

e) the vessel from which and to which fish is permitted to be transhipped; (

f) the period during which fishing or transporting fish is permitted to be carried out; (

g) the vessel that is permitted to be used and the persons who are permitted to operate it; (

h) the type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is permitted to be used; (

i) the specific location at which fishing gear is permitted to be set; (

j) the distance to be maintained between fishing gear; (

k) information that the holder of the licence shall report to the Department prior to commencement of a fishing trip with respect to where and when fishing will be carried out, including the method by which, the times at which and the person to whom the report is to be made; (

l) information that the master of the vessel shall report to the Department from sea, including the method by which, the times at which and the person to whom the report is to be made; (

m) the location and times at which landing of fish from the vessel is permitted; (

n) verification by an observer of the weight and species of any fish caught and retained; (

o) the method permitted for landing of fish from the vessel and the method by which the weight of the fish is to be determined; (

p) records that the master of the vessel shall keep of any fishing activity carried out under the licence or of the sale or transporting of fish caught under the licence, including the manner and form in which the records are to be kept, the times at which and the person to whom the records are to be produced and the period for which the records are to be retained; (

q) the type, size and colour of containers to hold or transport fish and the marking of such containers for identification of the source of the fish; (

r) the marking or tagging of fish for identification of the source of the fish; (

s) the segregation of fish by species on board the vessel; (

t) the time within which findings and data obtained as a result of fishing for an experimental or scientific purpose are to be forwarded to the Minister; (

u) the manner in which fish caught for an educational or public display purpose are to be held and transported; (

v) the species and quantities of fish that may be released or transferred under a licence issued under

Part VIII; (

w) the period during which the release or transfer of fish is to be carried out under a licence issued under

Part VIII; (

x) the waters or fish rearing facility into which the fish are to be released or transferred under a licence issued under

Part VIII; (

y) the waters or fish rearing facility from which the fish are to be taken under a licence issued under

Part VIII; (

z) the method and manner of transporting the fish to be released or transferred under a licence issued under

Part VIII; and ( z.1 ) the method of disposing of any water, container or other material used in the transporting of fish under a licence issued under

Part VIII.

(2) The Minister may, for the purposes of the conservation and protection of fish, amend the conditions of a licence.

(3) A notice of any amendment referred to in subsection (2) shall be (

a) sent to the licence holder by registered mail; or (

b) personally delivered to the licence holder by a fishery officer.

(4) An amendment referred to in subsection (2) is effective from the time the licence holder receives the notice referred to in subsection (3).

(5) A notice referred to in subsection (3) forms part of the licence to which it relates and the licence holder shall, on receipt of such a notice, attach the notice to the licence.

(6) Compliance with the Act and the regulations made under the Act is a condition of every licence.

(7) No person carrying out any activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. 7 ) The vessel the Ivy Rose was licensed to fish groundfish. Condition 6.6.1(

f) of the license required the accused to hail a trip

summary, to a Dockside Monitoring Company three hours prior to landing, containing …the accurate round weight of fish on board the vessel by individual species. He was charged with failing to comply with that condition of his license. Background 8 ) At trial, the Court heard three Crown witnesses and the accused testified in his own defence. During closing arguments Defence counsel sought to advance an argument challenging the constitutional validity of the license provision which the accused was alleged to have violated and the arbitrariness of the enforcement.

Crown counsel argued that the defence motion ought be dismissed, not on the merits, but due to the lateness of the motion. The Court requested and received oral and written submissions. 9 ) By decision reported at 2015 NSPC 96 , the Court denied the Crown motion to dismiss the Defence motion. The Court granted the Defence permission to raise the constitutional arguments. 10 ) On the Defence motion, the Court proceeded on the understanding that the trial evidence would be considered and both Crown and Defence were given the opportunity to call further evidence.

Counsel for the Crown and counsel for the accused declined to call further evidence on the motion. 11 ) This is the decision of the Court on the Defence Motion and the Trial. The Evidence • I will begin by setting out the basic facts of this case, which were not in dispute. I accept the evidence and find that on December 22, 2013 the fishing vessel IVY Rose was licensed to fish groundfish (Groundfish Fishing Licence 2012-14 for Vessel Greater Than 30.48 M LOA Using Fixed Gear (FG) or Mobile Gear (MO) NL-004). Item 6.6.1(

f) of the license required the operator to hail a Trip

Summary, to a Dockside Monitoring Company three hours prior to landing, containing, among other things, the accurate round weight of fish on board the vessel by individual species. 12 ) On December 22, 2013, the operator, Captain Tyler Henneberry, three hours prior to landing, hailed a trip

summary of 17,450 pounds of halibut . When the IVY Rose arrived at the wharf, at around 1:00 am it was met by fishery officers who had decided to do a spot inspection of the offload to ensure compliance with the Fisheries Act . The crew left the vessel for the night and DFO maintained surveillance over it until the crew returned later in the morning to conduct the offload. 13 ) On December 23, 2013, fisheries officers monitored the offload and inspected the IVY Rose’s Fixed Gear Groundfish Monitoring Documents #190654 and 190655.

In those documents, commonly referred to as “fishing logs”, Captain Tyler Henneberry had signed as captain and recorded the hail of 17,450 pounds of halibut under the column heading ROUND WEIGHT OF CATCH. 14 ) Dockside Monitor Brian Richardson monitored the IVY Rose offload.

He confirmed on the FIXED GEAR WEIGHOUT SLIP portion of the IVY Rose’s Fixed Gear Groundfish Monitoring Documents #190654 and 190655 that 17,830 pounds of dressed weight (head off -tail on) halibut was offloaded from the IVY Rose . (That weight represented the actual weight offloaded minus the industry standard 5% ice allowance.) 15 ) Fishery Officer Vince Smith also recorded the weights of halibut offloaded from the vessel. He totaled the weight at 18, 689 pounds. He reduced that total by 5%, the industry standard allowance for ice (934 pounds) resulting in a net weight of 17,755 pounds (dressed, head off).

I find the small difference of 75 pounds between Mr. Richardson’s total and F.O. Smith’s total, inconsequential. I find the weights recorded by Mr. Richardson and F.O. Smith reliable. 16 ) Since the halibut was in dressed form at the time of offload, it was necessary to convert the landed dressed weight back to round weight in order to determine how much round weight halibut had been landed. Officer Smith applied the industry standard conversion factor of 1.26 to convert dressed weight to round weight.

Using the lower total of 17,755 pounds of dressed weight he calculated that 22,371 pounds of round weight halibut were offloaded. Which meant that, 4,921 pounds of halibut had not been reflected in the hail. 17 ) Officer Smith testified that the unreported 4,921 pounds of round weight of the halibut landed was 28% of the round weight hailed (22% of the landed weight). He concluded that the accused’s hail was not accurate .

Captain Henneberry was charged with failing to comply with a condition of license by failing to hail the accurate round weight of fish by species, contrary to s. 22(7) of the Fishery (General) Regulations , SOR/93-186, thereby committing an offence under s. 78 of the Fisheries Act, R.S.C. 1985, c. F-14.

Gary MacDonald, Fisheries Officer (F.O.) 18 ) F.O. MacDonald and F.O. Paul Morash and F.O. Chris Daye attended the wharf at Sambro, Nova Scotia at 1:00 am on December 23, 2013 to conduct a spot inspection of the Ivy Rose (vessel) scheduled to return to that dock that early morning. He observed the vessel as it was about to dock. 19 ) Once the vessel docked he went on board and spoke with the vessel’s Captain, Tyler Henneberry. He requested to see the ship’s log. He examined the log book which seemed to be in order. He was told the vessel was scheduled to be off-loaded at 9:00 am.

The crew were permitted to leave the vessel. F.O. MacDonald maintained observation of the vessel until the off-loading at approximately 9:00 that morning. He indicated that this was necessary to ensure that “nothing was put on the boat and nothing came off the boat” after it docked and before the official inspection of the fish off-loaded. 20 ) He testified that Dockside Monitor Richardson arrived at the wharf that morning to weigh the off-loaded fish. According to F.O. MacDonald, Mr. Richardson is an employee of a company called “Barrington Catch”.

His salary is paid for through a system funded by the fishers. 21 ) F.O. MacDonald testifies that F.O. Vince Smith arrived that morning and took charge of the inspection of the offload of the vessel. 22 ) F.O. MacDonald’s role during the inspection was to be on board the vessel to observe and ensure that all fish on board were offloaded and taken to the weighing station. He did so. 23 ) F.O. MacDonald testified that the halibut on board the vessel were dressed (guts removed) and held in pens, covered in ice. Before being weighed, during off-load, the heads were removed. 24 ) F.O.

MacDonald introduced the accused’s licence to fish (Exhibit 1), and the ground-fish fishing license for the Ivy Rose (Exhibit 2). The license requires, inter alia, in condition 6.6.1(

f) that the vessel captain hail … the accurate round weight of fish on board the vessel by individual species at least three hours prior to returning to port. 25 ) F.O. MacDonald testified that the accused, Captain Tyler Henneberry, recorded in his log book a rounded weight of 17, 450 of halibut on board the vessel. 26 ) F.O. MacDonald testified that Dockside Monitor Richardson recorded on the monitoring document (Exhibit 3) a landed total round weight of halibut (heads off) from the Ivy Rose of 17,830 pounds. This was net of a 5% allowance for ice, which is the industry standard (pg 60, line 1). 27 ) F.O.

MacDonald testified that the standard conversion factor for converting dressed, head-off halibut to rounded weight is 1.26. Applying this factor to the dressed, heads off total, he stated that the round weight of halibut off-loaded from the Ivy Rose on December 23, 2013 was 22,371 pounds. 28 ) F.O. MacDonald referred to the halibut fishery as “lucrative” with the fish, at certain times of the year attracting a price of $10- $12 per pound. He testified that the weight of each off-load is deducted from the fisher’s quota, limiting how much fish they are permitted to catch during the season.

He stated that the lucrative nature of the fishery creates a “potential for fraud for collusion…” 29 ) He stated that government officials conduct spot checks on the fishers and the dockside monitors. 30 ) F.O. MacDonald indicated that vessels the size of the Ivy Rose are required to have their catch weighed by a dockside monitor on each occasion when they return to port. 31 ) On cross-examination F.O. MacDonald agreed that the amount of ice put between layers of fish in the pens on board a ship and over top of them varies by individuals.

He referred to Exhibit 5 and 6 – photos taken by him of pens on Ivy Rose. 32 ) F.O. MacDonald did not know who owned the scale used to weigh the fish off-loaded from the Ivy Rose, or whether or when it was calibrated. 33 ) F.O. MacDonald disagreed with a suggestion that no ground fisher weighs each fish as it comes off the line onto the boat. He testified that there are fishers in Sambro who have a scale on board the vessel and weigh the fish.

He understood it was difficult to do so, but they do it and their hails are “pretty accurate”. 34 ) He provided an anecdote of one ship of similar size to the Ivy Rose returning after a three week trip, and the hail was off by “less than two percent”. Later he said on their next trip their hail was off by “9.8 percent, I believe”. 35 ) When asked for his understanding of an accurate hail, he replied: A. An accurate hail is to provide a hail that’s as accurate…accurate means what is … what you have on your boat. I don’t think accurate means to be exact.

But in my experience of fishing, and I have lobster-fished, I have snow-crab-fished, it’s been my experience when you get used to your boat, you have a pretty good idea of what you’ve got on your boat. 36 ) And further: A. ... I’ve never been given a clear definition of what accurate was. Q. Okay. A. Not my understanding that it has to be exact, to the exact pound. But accurate means accurate.

Q. Okay. A. I don’t know how you interpret it. If I looked up the definition of accurate, I think it would means specific. 37 ) When asked about discretion whether to lay a charge, he stated… A. I do have some discretion. If that accurate hail isn’t exact, I guess, yes, I do have some discretion. Q. Okay. Does anybody give you any guideline with respect to percentage by which the hail can be off? A. Not that I’m aware of in my career have I ever gotten any instruction on what you can be off by. Fisheries Officer Vince Smith (F.O.) 38 ) F.O.

Smith testified he’d been a Fisheries Officer for 26 years. 39 ) He stated that he attended the wharf in Sambro, Nova Scotia at 7:00 am on December 23, 2013, to observe the off-loading of the vessel, the Ivy Rose, which was tied up to the wharf at that time. He boarded the vessel and went below to see the amount of halibut on board. He departed the vessel and awaited the commencement of the off-loading. 40 ) He observed the off-load. He was in a position to see the fish being dumped off of the ship and he could see the scale as the fish were weighed.

He observed the fish being dumped off the ship, the fish heads removed, most of the ice removed and then the fish weighed. He recorded the weight of each fish or group of fish weighed in his notebook. 41 ) F.O. Smith testified that, on December 23, 2013, he totalled the weights using a calculator but neglected to record the total in his notebook. Repeating the calculation in court, he stated that the total weight was 18,689 pounds.

He then allowed the industry standard deduction for ice (even though most of the ice had been removed before the fish were weighed) of 934 pounds achieving a net dressed, head-off weight of 17,755 pounds. He said that his total was within 75 pounds of the net weight recorded by the dockside monitor. 42 ) F.O. Smith then multiplied 17,755 by the conversion factor of 1.26 (to convert the dressed, head-off weight to round weight) and stated that the round weight of halibut off-loaded from the Ivy Rose on December 23, 2013 was 22,371 pounds.

He testified that the round weight of halibut not hailed was 28% of what was hailed. He didn’t agree that the overage ought to be expressed as a percentage of the landed weight, which would be 22%. 43 ) The accused was told that approximately 5000 pounds of halibut would be seized and he would be charged with failing to make an accurate hail. 44 ) F.O. Smith described the halibut fishery as a “longline fishery”. He explained that a series of hooks are set on a long line and set in the water. When pulled in the fish are individually removed from a hook, gutted and put into a pen.

Each layer of fish in the pens is covered in ice and another layer put on top. 45 ) In relation to the decision to charge a captain, F.O. Smith stated: A. The discretion varies. There’s no set number. It varies on a lot of different factors. It varies on history, how many times we’ve been involved with a fisherman. It could be that maybe he’s a newer fisherman where he’s not that familiar. We would talk to him and try and, you know, get him to a point where he can accurately hail these type of landings. But again, we don’t set any tolerance at all.

It varies on their history and their knowledge and our involvement with them. I mean … Q. Okay, so … sorry. A. It’s just something that we … you know, that has to be more of a floating type of figure because circumstances change. 46 ) And, also: A. We have a number of fishers in 45-foot boats who weigh each individual halibut. We have fishers who have volumetric measures on their boats. They’re tanks or tubs that, once they’re full to a certain point, they know a reasonable accurate amount of weight. Volumetric measures are fairly accurate, and it’s a good way to know your weight as you’re fishing.

So the expectation of this log to be reasonably accurate on our

part is used. The Fixed-Gear Groundfish Monitoring document is probably one of the most compliance … or most effective and best monitoring tool Fishery Officers have in fisheries related to quotas. 47 ) And also, A. So it’s a safeguard for us, so it isn’t that they know if a Fishery Officer isn’t … or isn’t there, they have to commit to an accurate weight without knowing the Fishery Officer is going to be at the wharf. So it’s a big compliance tool for us to ensure that, you know, this is being recorded, it’s carbon-copied, and they have to give that number before they know we’re around. 48 ) And, Q.

Okay, The failure to accurately hail means that you fail to accurately estimate the amount of fish that you have, correct? A. Correct.

49 ) Further, Q. Okay. What is the industry standard for the amount that you can … what’s the industry standard for the variation in the hail that would lead to a criminal … or lead to a F isheries Act charge? A. There’s none that I know of. Q. So it’s essentially up to each individual Fishery Officer. A. It’s up to the Fishery Officer, yes, Fishery Officer discretion. Q. And as far as you know, there is no guideline in that regard. A. No. Q. Okay. Now as I understand it … A. Your Honour, can I expand on that question? THE COURT: Mr. MacDonald? MR.

MACDONALD: Well, I expect that my friend’s going to ask it in re-direct anyway, so we might as well hear it now, sure. THE COURT: All right. You may provide the additional information. A. And there’s a very good reason, of course, that we … there’s no industry standard or Fishery Officers don’t have a standard because that would quickly become a standard for the fishermen. It has to be fluid. It has to be based on their history. It has to be based on their compliance level. And so to have … to say that we can set ten percent over, well, that just creates another barrier.

So it has to be an accurate hail, and we have to work around it. And I think that we’re quite fair in how we do that. MR. MACDONALD: What do you mean by barrier? What do you mean by barrier? A. Well , you’d asked if there’s an industry standard for going over where a charge would be … and what I’m saying is there could never be that because that would become another … another amount that the fishermen would go to always, knowing that they couldn’t get charged, and then push beyond that. And then at what point do we … Q.

As it stands right now, there is the … the way you’re suggesting is that there would be zero tolerance, right? A. There is zero tolerance in the fishery. It’s up to the Fishery Officer’s discretion to decide above zero tolerance. And that’s … Q. Which can go up to what percentage? A. Again, that’s up to each fishery and the compliance history of the person they’re dealing with. Q. So you’re saying that a person who has been … who has not been compliant is more likely going to be treated differently than someone who’s been compliant in the past? A. No, I’m not saying that.

It would depend how far over the person who was not com … or compliant in the past. There’s a lot of factors in there.

Q. But what difference does compliance mean, then? What difference does it make? You said it makes a difference, and now I don’t understand what you mean by that. A. Someone who’s … someone who’s trying to stay within the rules. Q. So how do you determine whether they’re trying to stay within the rules? A. Through our history of dealing with that particular person. Q. Right. So if that person has been in violation before, they’re more likely going to charge him than if he hasn’t. A. Well, and again, that would be a factor of how much he was over. It just isn’t one factor alone that we take in. Q.

But some people can be over by 20 percent and not be charged. A. I’m not saying that. I’ve never let anybody go 20 percent over and not charge them but … Q. But you can’t speak for every officer. A. No, I can’t. 50 ) And again, Q. Do you agree with me that, you know, estimating the weight of fish sometimes is difficult? A. I don’t know if I can agree with that. Q. Okay. If I just might have a minute, Your Honour, Please. THE COURT: Certainly. MR.

MACDONALD: Would it be fair to say that … this is a phrase that you used in your direct examination, that when it comes to an accurate hail, what you use as your guide is reasonably accurate? A. Yes. Brian Richardson 51 ) Mr. Richardson was employed, part-time, as a Dockside Monitor in 2013. He had limited recall on the events of December 23, 2013, without using the monitoring document, Exhibit 3, which he completed, as an aide memoire. 52 ) He testified that he recorded a total dressed weight of halibut of 17,830 pounds, not of the deduction for ice and slime. He applied an ice allowance of 5%.

Tyler Henneberry 53 ) The accused, Tyler Henneberry, age 28, was the Captain of the Ivy Rose on December 23, 2013. At the time he was 26 years of age and had been fishing since the age of 14. 54 ) The Ivy Rose left port on December 9 th to fish for halibut on Grand Banks, returning to port on December 23, 2013. The ship had a crew of seven, two of whom were relatively new to the ship. 55 ) Captain Henneberry testified that the weather during the fishing trip was terrible, with cold temperatures and strong winds. He described the process of fishing for halibut.

Fish lines have hooks spaced a certain distance apart. The hooks are baited and put into the water. When fishing there would always be nine or ten lines in the water. When each line is hauled in the fish caught are individually removed from the hook and put into a tank. Each fish is dressed and sent down to the hold into a pen. The fish are covered in ice to keep them fresh. The pens are of different sizes. A pen may hold around 4000 pounds of fish but it depends on the amount of ice and sizes of the fish.

More smaller fish in a pen weighs more. 56 ) The crew haul continuously except when steaming to a different fishing string location (usually two hours apart). After fish are removed from a hook the hook is rebaited and the line put back into the water. The men baiting the hooks are out of the weather but those hauling the lines and removing the fish from the hooks and dressing the fish are exposed to the weather.

He said they are always working, always rushing and more and more fatigued as the trip continues. 57 ) Captain Henneberry testified that while he is working, he estimates the weight of the halibut in each pen as it is sent down to the hold. He applies a conversion rate of 1.26 to the estimated dressed weight to record a round weight. 58 ) Captain Henneberry testified that, at times, he is asleep when fish are being hauled and sent to the holed.

In those circumstances, he relies on the information given to him by his second in command to record the round weight of halibut landed. 59 ) He described the process he followed of recording the round weight of halibut caught as “all guesswork”. The estimate is based on an “eyeballing” of the pen holding the fish. 60 ) He expressed the opinion that it wasn’t possible to weigh each fish given the process and conditions on the ship at sea. He wouldn’t be open to using a scale.

61) On cross-examination, he testified that he might have hailed the dressed weight rather than the round weight. He didn’t haveany system to ensure he applied the 1.26 conversion factor and recorded the round weight. He said there could’ve been human error dueto fatigue. That could’ve caused the 20% difference. The Defence Argument 62) The Defence submitted that the license condition requiring Mr. Henneberry to hail the accurate round weight of his catch wasunconstitutionally vague and in violation of his right under s. 7 of the Charter of Rights and Freedoms,

part 1 of the Constitution Act,1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11. 63) Further, the Defence submitted that the license condition requiring Mr. Henneberry to hail the accurate round weight of hiscatch was arbitrary and/or overbroad and/or enforced in an arbitrary manner in violation of the accused’s s. 7 right under the Charter ofRights and Freedoms. The Defence Argument on Vagueness 64) Defence counsel argued that the word accurate ought to be given it’s dictionary meaning, that is, exact or precise.

Since, on theevidence, it is virtually impossible to report the exact weight of fish on board, every fisher would be subject to being charged whichwould be arbitrary. If the provision does not require the operator to report a precise weight, it provides no guidance on what degree ofvariance is unacceptable. The Defence contends that “there does not appear to be a consensus on how to interpret and apply the lawaround hailing the accurate round weight of fish.

As such, there is no solid or settled core or meaning sufficient to delineate a zone ofrisk”, as the law requires. 65) Defence counsel referred to uncontradicted evidence in R. v. Ross,

(1991) CanLII 7535 Nfld Supreme Court, Trial Division,that “estimates” are usually within 5-12% of weights of fish. In the present case there was no evidence of the accuracy of estimates byother vessel operators except for two anecdotes provided by F.O. MacDonald. 66) In Ross, the license condition required the accused to “provide a true return”. Captain Ross was convicted at trial of failing todo so. On appeal, counsel for Ross argued that a “true return” could not mean accurate as that was virtually impossible and the lawfailed to provide guidance as to what degree of variance was unacceptable.

He argued, as in the present case, that the law wasunconstitutionally vague. 67) The Nfld Court of Appeal held that the provision was not vague and that a true return requires the return to be accurate.Practical difficulties in complying with the “accurate” standard are accommodated, in each case, through the available defence of duediligence. 68) Defence counsel pointed out that the decision in Ross pre-dated the decision of the Supreme Court of Canada decision in R. v.Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 SCR 606, which clarified the law relating to “vagueness” andprior to the decision of the Supreme Court of Canada in R. v.

Canadian Pacific Ltd., [1995] 2. S.C.R. 1031 in which Lamar, C.J. statedthat, in that case, the defense of due diligence had no bearing on whether the impugned condition was unconstitutionally vague. Hestated: “… In my view, while the fact that a defence exists will often shed light on the meaning that is to be ascribed to an otherwise vagueprovision, and thus be relevant to a s. 7 vagueness analysis, this is not the case with every defence.

What is important is the relationbetween the defence and the terms of the statute that are said to be unconstitutionally imprecise.” 69) Defence counsel also referred the Court to the decision of the Nova Scotia Court of Appeal in R. v. VanBuskirk, 2000 NSCA11. Captain VanBuskirk was charged with a violation of s. 78 of the Fisheries Act for failing to comply with a condition of his licenserequiring the hailing of the round weight of fish on board the vessel. The license of Captain VanBuskirk did not specify that the hailmust be “accurate”.

The instructions for completing his log book stated that the round weight of fish caught was to be estimated. CaptainVanBuskirk’s hail was under the actual round weight of halibut on board the vessel by 25%. 70) On

Summary Conviction Appeal, Captain VanBuskirk successfully argued that he was required, only, to provide an estimaterather than an accurate hail of the weight of fish on board the vessel. The trial judge had rejected this argument and ruled that the usualmeaning of the word estimate did not apply in the context of a fishery license. In that context reasonable accuracy was required. TheCourt of Appeal of Nova Scotia rejected the Crown appeal. The court held that the language of the license required only an estimate andthe estimate need only be reasonable. The court rejected the crown argument that the hail must be accurate and, at para. 24, statedaccurate means “precise, careful”. 71) In

summary, defence counsel did not dispute the authority of the Minister of Fisheries to require vessel operators to hail theround weight of their catch but challenged the constitutional validity of the accused’s license condition that the hail of the round weightof the fish on board the vessel must be accurate. Crown Position on Vagueness 72) Crown counsel argued that the Nova Scotia Court of Appeal in R. v. VanBuskirk defined the word accurate in the context ofthe fishery as meaning accurate and careful.

The Crown submitted that the burden rests on the crown to prove beyond a reasonable doubtthat the accused’s hail was neither precise nor careful, that is, not the result of the exercise of care. Defence Argument on Arbitrariness and Overbreadth 73) Defense counsel argued that the analysis of whether a provision is arbitrary is a two-step process, as set out in Canada(Attorney General) v PHS Community Services Society, [2011] SCC 44:

(1) Identify the law’s objectives; and

(2) Identify the relationship between the state interest and the impugned law or impugned provision (para 132). 74) Defence counsel argued that the objectives of the Fisheries Act was summarized by the Nova Scotia Court of Appeal in R. v.Savory (1992), (NS CA), 108 NSR (2d) 245, at para 14 (adopted by the Supreme Court of Canada in R. v. UlybelEnterprises Ltd., [2001] SCC 56, at para 24): The Act and the Regulations have been passed for the purpose of regulating the fishery; regulatory legislation should be given a liberalinterpretation.

A major objective of the Act and the Regulations is to properly manage and control the commercial fishery. 75) Defence counsel submitted that, where Mr. Henneberry’s vessel, the Ivy Rose, was subject to 100% dockside monitoring,echoing the Court in VanBuskirk (CA) it doesn’t appear that the requirement for a hail to be accurate is critically important, consideringthat a more accurate weighing will be done anyways upon landing.

Subjecting fishers to fines and potential imprisonment for a failure to“accurately” hail – where accuracy is not necessary to further the objectives of the Fisheries Act – is arbitrary and overbroad. Crown Position on Arbitrariness and Overbreadth 76) The Crown submitted that the evidence established that the requirement for a vessel operator to hail the weight of fish onboard before landing was an important enforcement tool. The provision was necessary to support efforts to ensure compliance with fishquotas by discouraging fraud and/or collusion.

As such, the provision related directly to the objectives of the Fisheries Act and given itsimportance, was not overbroad. Defence Position on Arbitrary Enforcement 77) Defence counsel submitted that the evidence of the Fisheries officers in this case revealed no guidelines for interpreting thelicense condition “accurate hail” and no direction regarding what factors ought be considered in determining whether or not to lay acharge. Defence counsel submitted that it was inappropriate for the Fisheries officers to consider the accused’s history of compliance asa factor to be considered in the charging decision.

Crown Position on Arbitrary Enforcement 78) The Crown submitted that the Court ought to accept the evidence of F.O. Smith that all operators whose hailed weight was atvariance with the actual weight by the amount of variance for the accused would be charged by him. Therefore, his exercise ofdiscretion was consistent and not arbitrary vis-à-vis the accused. The Crown position was that the history of compliance by the accusedwas a relevant factor to be considered by a fishery officer in exercising discretion whether to lay a charge. Applicable Law 79)

Section 7 of the Charter of Rights and Freedoms states: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. Vagueness 80) The leading case on “vagueness” is R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606. 81) At para. 28, Justice Gonthier stated, in part, 1. Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague.

Itcan also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that alimitation on Charter rights be “prescribed by law”. Furthermore, vagueness is also relevant to the “minimal impairment” stage of theOakes test. 2. The “doctrine of vagueness” is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation ofenforcement discretion. 3. Factors to be considered in determining whether a law is too vague include (

a) the need for flexibility and the interpretive role ofthe courts, (

b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (

c) the possibilitythat many varying judicial

interpretations of a given disposition may exist and perhaps coexist. 82) At para. 62 he stated: In other words, a law must provide enough guidance to predict the legal consequences of any given course of conduct, and mustdelineate a zone of risk. 83) At para. 71, he stated: These foundational concepts informed the Court’s legal test for vagueness: A law will be found unconstitutionally vague if it so lacks inprecision as not to give sufficient guidance for legal debate. 84) At para. 69, he stated: What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how

to exercise this discretion, so that this exercise may be controlled. Once more, an unpermissibly vague law will not provide a sufficientbasis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered ordeterminative elements.

In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of thisdiscretion. 85) In relation to laws establishing a regulatory regime, the Court stated, at para. 58-71: … Where the legislature provides protection through regulatory statutes such as the EPA, it is appropriate for courts to take a moredeferential approach to the Charter review of the offences contained in such statutes. I therefore conclude that the purpose and subject matter of s. 13(1)(

a) EPA, the societal values underlying it, and its nature as aregulatory offence, all inform the analysis of CP’s s. 7 vagueness claim. Legislators must have considerable room to manoeuvre in thefield of environmental regulation, and s. 7 must not be employed to hinder flexible and ambitious legislative approaches to environmentalprotection. … Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law isactualized by a competent authority. In the meanwhile, a conduct is guided by approximation.

The process of approximation sometimesresults in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hopeto do more, unless they are directed at individual instances. … Indeed no higher requirement as to certainty can be imposed on law in our modern State. Semantic arguments, based on a perception oflanguage as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is.

It cannot be argued that anenactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it cando is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along theboundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective.… A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasonedanalysis applying legal criteria.

It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizennor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court,and therefore it fails to give sufficient indications that that could fuel a legal debate. It offers no grasp to the judiciary.

The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks inprecision as not to give sufficient guidance for legal debate. 86) In Reference Regarding ss. 193 & 195.1(1)(

c) of the Criminal Code (Canada)[1990] 1. S.C.R. 1123 the court stated, at para41: Flexibility and vagueness are not synonymous. Therefore the question at hand is whether the impugned sections of the Criminal Codecan be or have been given sensible meanings by the courts. In other words, is the statute so pervasively vague that it permits a“standardless sweep”, allowing law enforcement officials to pursue their personal predilections?: see Smith v. Goguen, 415 U.S. 566 at575, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974), and Kolender v. Lawson, 461 U.S. 352 at 357-58, 75 L. Ed. 2d 903, 103 S.

Ct. 1855(1983). 87) In R. v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031, the court stated at para. 52: Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed thorough ananalysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislativeprovisions, and prior judicial

interpretations of the provision… 88) In Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), [2004] S.C.C. 4 the court stated,at para. 16: A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes itdifficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern ofputting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by therule of law, not the rule of persons.

Remedy Sought 89) The accused seeks a declaration that the language of the accused’s fishing license is unconstitutionally vague and that theaccused’s s. 7 Charter right has been violated. 90) In R. v.

Nova Scotia Pharmaceutical Society, supra, the court stated, at para. 42: For the sake of clarity, I would prefer to reserve the term “vagueness” for the most serious degree of vagueness where a law is so vagueas not to constitute a “limit prescribed by law” … 91) Further, at para. 68 the court stated: One must be wary of using the doctrine of vagueness to prevent or impede state action in furtherance of valid social objectives, byrequiring the law to achieve a degree of precision to which the subject matter does not lend itself. A delicate balance must be maintained

between societal interests and individual rights. … 92) In R. v. Shalala, [2000] N.B.R. No 14, the New Brunswick Court of Appeal stated, at para 77-78: Ambiguity and flexibility must not be confused with vagueness leading to unconstitutionality. Vagueness in wording will justifyinvalidation of a legislative disposition in cases where terms employed by the legislating body, viewed in their global context, fail toprovide any useful guidance in framing the legal debate surrounding its application or in structuring the exercise of any discretionconferred by it.

Invalidation, because of vagueness, can only occur when the terms employed, viewed in their global context, are soimprecise that courts are incapable of attributing to them a constant or settled meaning. Unquestionably, the standard for invalidation of legislation due to vagueness is high. Indeed, it is only after the court has exhausted itsinterpretive role that it will be appropriate for it to consider whether the impugned legislative disposition truly suffers from vagueness tothe point of being unconstitutional.

That interpretive role requires the court to focus on the terms that are said to be impermissibly vagueand to view them in the global context in which they are employed. See R. v. Lebeau (1988), (ON CA), 41 C.C.C.(3d) 163 (Ont. C.A.), appeal quashed 60 O.A.C. 320n (S.C.C.). Such a contextual approach requires the court to consider the history,purpose, subject-matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicialinterpretations of the provision itself and of the terms it employs. 93) In R. v.

Canadian Pacific Limited, supra, the court addressed the judicial approach to a claim of vagueness, at para. 47: In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision. This isbecause the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible andimpermissible conduct, or for ascertaining an “area of risk”.

This does not necessitate an exercise in strict judicial line-drawing because,as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibitedconduct. In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the“mediating role” of the judiciary: Nova Scotia Pharmaceutical Society, supra, at pp. 312-13 .C.C.C., pp. 58-9 D.L.R.

Vagueness mustnot be considered in abstracto, but instead must be assessed within a larger interpretative context developed through an analysis ofconsiderations such as the purpose, subject-matter and nature of the impugned provision, societal values, related legislative provisions,and prior judicial

interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position todetermine whether an impugned provision affords sufficient guidance for legal debate. 94) And further, at para. 49: The use of broad and general terms in legislation may well be justified, and s. 7 does not prevent the legislature from placing primaryreliance on the mediating role of the judiciary to determine whether those terms apply in particular fact situations. Decision on Vagueness 95) Following the direction of the Supreme Court of Canada in R. v.

Canadian Pacific Ltd., supra, the Court must first developthe full interpretative contest surrounding the impugned provision. Purpose, subject matter and nature of the Impugned Provision. 96) The purpose of the Fisheries Act, as stated in

Section 43 of the Act, includes: “… the proper management and control of the sea coast and inland fisheries” (clause 43(a)) ; and “… the conservation and protection of fish” (clause 43(b)). 97) To achieve these objectives the fishery is a “highly regulated industry” (R. v. VanBuskirk, [1999] N.S.J. No. 215, at para 8). Quotes for each species of fish are established for each fishing season and enforced in an effort to “promote conservation and goodmanagement in the fisheries” (R. v. VanBuskirk, supra) at para 8).

The requirement for a captain of a vessel to make an “accurate hail”of the round weight of the fish on the vessel by individual species before returning to port is a tool used to enforce fishing quotas, (seeevidence of F.O. Smith at p. 48). While the accused’s vessel was subject to 100% dockside monitoring, I accept the evidence of F.O.MacDonald that the lucrative nature of the halibut fishery creates a risk of fraud or collusion.

And further that the spot checking byFisheries Officers of fishers and dockside monitors is the most effective tool to ensure the compliance with the fishing quotas (per F.O.Smith at p. 48) Societal Values 98) In my view, societal values are addressed in the decision of R. v. NS Pharmaceutical Society, supra, at para 28, in point 2,specifically: The “doctrine of vagueness” is founded on the rule of law, particularly on the principle of fair notice to citizens and limitations ofenforcement discretion.

In the context of the present case, a captain of a vessel must have fair notice of what is required of him/her underthe law. 99) I have considered the provisions of the Fisheries Act and the Fisheries General Regulations and the provision of the accused’slicense which are before the Court. I note that s. 78.6 of the Fisheries Act provides for a defence of due diligence, specifically: 78.6 No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence to prevent the commission of the offence; or (

b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.

100) I have considered the Court’s comments in relation to the manner of assessing provisions which are part of a regulatory regime. Prior Judicial

Interpretations of the Provision 101) Courts of Nova Scotia have previously considered the requirement to hail under the Fisheries Act. 102) It is important to consider the jurisprudence in chronological order as the wording of the requirement to hail changed in 1998. 1997 103) In R. v. Shawn O’Donnell, June 17, 1997, NSPC, Prince, P.C.J. held that the fishing license condition to “hail” required theoperator to be “reasonably accurate in the circumstances of a regime that requires adherence on the basis of strict liability”. 1998 104) In R. v. Doucette, [1998] N.S.J. No. 214, Prince, P.C.J. again addressed the law regarding

Section 78 of the Fisheries Act. Captain Doucette’s license required him to “hail” the round weight of fish on the vessel by individual species. The hailed weight was tobe written in a log. The instructions for completing the log specified that the captain was required to estimate the round weight of thefish on board by individual species. Further, it stated that the estimates must be “accurate within a reasonable percentage (within 5percent of the industry average). 105) Judge Prince, following the decision in R. v. Petten (1995), (NL SC), 129 Nfld & P.E.I.

R. 37 (Nfld S.C.)found that the meaning of “estimate” must be determined in the context of the regulated fishing activity and the importance ofpreservation and management of the fishing resource. In that context the dictionary definition of estimate was not applicable. He foundthat a hail must be “reasonably accurate”. 106) On

summary appeal the decision of Judge Prince was overturned by Haliburton, J. Justice Haliburton held that Judge Princeerred in not applying the dictionary definition of estimate. He ordered production of industry hailing records. He compared the accuracyof the accused’s estimates to the industry average in assessing reasonableness. 107) On the retrial of Mr. Doucette, he was acquitted, see R. v. Doucette, [1998] N.S.J. No 814, Crawford, PCJ. 108) Judge Crawford, following the decision of Justice Haliburton, applied the dictionary definition of “estimate” when interpretingthe requirement to “hail”.

She found that an estimate implied a “degree of latitude” (p. 3). Further, she found that “the standard is one ofreasonableness, and the crown must establish that the defendant did not use his best skills and judgment in preparing the estimate”. (pp.5-6) 1997 109) Also in 1997 Captain VanBuskirk was convicted at trial of failing to provide an “accurate hail”. The condition of his fishinglicense requiring that he hail the round weight of his catch. His hail was 20% lower than the landed weight of his catch. 110) On

summary appeal, [1999] N.S.J. No 215, Boudreau, J. set aside the conviction and ordered a new trial. He stated: The only issue or question at the trial was whether Mr. VanBuskirk provided a reasonable estimate of his catch …” (para 2). 111) Crown counsel urged the Court to find that “reasonableness” of the hail ought be determined by the percentage variance (and/oractual) variance between the hailed weight and the landed weight.

Defence counsel urged the Court to find that reasonableness of thehail ought be determined by comparison of the variance of the accused’s hail to the landed weight with the industry average. JusticeBoudreau found that the accused’s license did not require that his had to be accurate. The standard applied by the trial judge wasincorrect.

And at para 10, he stated: In my opinion, the proper approach in applying the reasonableness test in cases such as these, on basically identical facts, wasdemonstrated in the Doucette case, supra, where Judge Crawford laid out the question to be decided at page 3 of her decision as follows: Has the Crown proven beyond reasonable doubt that the defendant “failed to hail” the round weight of cod and haddock, or in otherwords, that the defendant failed to use his best skills and judgement in preparing the estimates on which his hail was based? 112) In conclusion Justice Boudreau stated: In the final analysis, I find that the trial judge erred in law in that he applied the wrong test in determining the reasonableness of theestimates and he also failed to enunciate the standard by which the test of reasonableness is to be assessed. 113) The crown appealed.

The decision of the Nova Scotia Court of Appeal is reported at [2000] N.S.J. No. 17. 114) The Court of Appeal upheld the decision of Boudreau, J. agreeing that the term “estimate” in the accused’s log book instructionswas to be considered in light of the dictionary definition thereof, that being an “appropriate calculation” (para 14) or “approximatejudgment” (para 24). 115) The court went on to say that, at para 24: The word “accurate” means “careful, precise”.

The concept of reasonable accuracy or precision in reporting the weight of round fishhailed is the antithesis of an estimate. 116) Further, at para 25, the court stated:

There was no evidence before the trial judge as to why an element of accuracy or precision in the weight of round fish hailed was necessary to achieve the objectives of the Fisheries Act and the Regulations , particularly in view of the requirement for 100% monitoring by dockside weighing of the catch. 117 ) The Court of Appeal declined to address Justice Boudreau’s decision on whether the trial judge had applied the correct test in relation to reasonableness and/or due diligence. 118 ) In 1998 the wording of fishing license conditions to hail (report) the round weight of fish on board by individual species, before returning to port was changed to require that the operator of the vessel make an “accurate hail”. 119 ) The license condition “accurate hail” has yet to be considered by an appeal court in Nova Scotia. 120 ) The term “accurate” is not defined in the Fisheries Act or Regulations or the license for the vessel, the Ivy Rose. 1991 121 ) In R. v.

Ross 1991 Can Lii 7535 (Nfld S.C.T.D.) Captain Ross was convicted of violating the condition of his fishing license requiring him to provide a “true return” of the round weight of fish on the vessel. 122 ) The term “true return” was not defined in the Act , or Regulations or license. The court held, at para 33, that “while the concept of true return clearly requires a return that is accurate, practical difficulties in complying with accuracy are accommodated in each case through the available defence of due diligence.” 123 ) Defence counsel provided two dictionary

definitions of accurate, The Cambridge Dictionary Online defines “accurate” as “correct and without any mistakes”. The Merriam-Webster Dictionary defines “accurate” as: 1. Free from error especially as a result of care. 2. Conforming exactly to a truth or to a standard. 3. Able to give an accurate result. Dictionary.com, a popular online resource, defines the term as: 1. Free from error or defect; consistent with a standard, rule, or model; precise, exact. 2. Careful or meticulous. 124 ) The Crown urged the Court to find that “accurate” means precise and exercised with care, per the Oxford English Dictionary, “1.

Executed with care – 1738; 2. Of things and persons: exact, correct, as a result of care 1612; 3. Of things: conforming to a standard, or to truth; precise, correct 1651”. 125 ) The Crown submitted that the Crown must prove that the defendant’s determination of the round weight hailed was not executed with care (Crown Brief, p. 21, para 48). 126 ) In my view, the Nova Scotia Court of Appeal in R. v. VanBuskirk , supra, considered the meaning of accurate in the context of

Section 78 of the Fisheries Act and found that the word accurate meant “careful, precise”. The court added: “The concept of reasonable accuracy or precision in reporting the weight of round fish hailed is the antitheses of an estimate”. Under the principle of stare decisis I consider myself bound by their ruling. It is for this Court to interpret and apply their ruling to the present case. 127 ) In addition to the words careful and precise, the Court of Appeal used the term “reasonable accuracy”. This term had been used by

Summary Appeal Judges in Doucette and VanBuskirk . Aspects of reasonable accuracy considered were the actual difference between the hailed weight and the landed weight, the percentage variance between the hailed weight and landed weight and the process followed by the operator in completing the task of hailing the weight of fish on board the vessel. The Court of Appeal in VanBuskirk declined to comment on this issue. 128 ) I have concluded that the word accurate in condition 6.6.1(

f) of the fishing license of the Ivy Rose does not mean exact. 129 ) I have come to this conclusion for two reasons. 130 ) First, the Court of Appeal in VanBuskirk in defining “accurate”, did not use only the term precise. The Court added the word careful. I conclude that the addition of the word careful added to the scope of the meaning of the word accurate. 131 ) Second, the Court of Appeal used the term reasonable accuracy. In the fishing industry a requirement to be exact would be unreasonable.

The process of assessing whether a “hail” is accurate involves a percentage allowance for ice and a conversion factor, both of which by their nature are not exact. 132 ) The operator of a fishing vessel is required by condition of fishing license to hail (report) the round weight of fish on board by individual species. The round weight is the weight of the fish before it is dressed (guts removed) and the head removed. 133 ) At sea, halibut is caught and brought on board the vessel one fish at a time.

The fish are put into pens to be sent down below to the vessel’s hold. 134 ) Captain Henneberry testified that he assessed the round weight of halibut in each pen before the pen was sent down below to the hold. He did not count the fish. He did not weigh the fish. Once the fish in the pens were sent down to the hold, they were dressed (guts removed) and put into pens. Each layer of fish in each pen was covered with ice to keep them as fresh as possible. The ice was not measured or weighed. 135 ) Upon return to port the fish are offloaded from the ship. The head of each fish is removed.

The ice, or on the evidence in this

case, at least most of it, was removed and then, the fish weighed by a Dockside Monitor. Even though the ice, or most of it was removed, an allowance of 5% was granted for ice that meant that the total dressed, head off weight was reduced by 5%. The dressed, head off weight, less the 5% allowance for ice, was then converted to round weight by using the “industry standard” factor of 1.26. 136 ) This process has inaccurateness built into it.

Conclusions 137 ) I find that the word “accurate” in the context of a condition of a fishing license authorized by s. 22(1) of the Fishery (General) Regulations means “precise, careful”. I further find that these words are not synonymous but rather express two aspects to the meaning of the word accurate; first, precision in completing the task; and second, the exercise of care in completing the task. When considered together in relation to the condition 6.6.1(

f) of the accused’s fishing license, I find that the condition requires that the vessel operator make as precise a report of the round weight of the fish onboard the vessel by individual species as can be accomplished with the exercising of care in completing the task.

I find that this is consistent with the Court of Appeals use of the term reasonable accuracy. 138 ) The exercise of care involves consideration of factors including the method and equipment used in completing the task and the captain’s knowledge and experience. 139 ) In my view, this determination of the actus rea of the offence does not diminish the defence of due diligence or mistaken belief of fact set out in s. 78.6 of the Fisheries Act . 140 ) Based upon the Court’s finding of the meaning of the term “accurate hail” the Court is satisfied that condition 6.6.1(

f) in the fishing license of the Ivy Rose delineates, with sufficient clarity, a zone of risk and gives vessel operators, with a like requirement to that of the Ivy Rose, notice of the conduct which will make them liable to being charged. I am not persuaded that the provision is constitutionally invalid due to vagueness. The Defence motion for a declaration of vagueness and for a finding of a breach of

section 7 of the Charter for vagueness is denied. 141 ) I accept the evidence of F.O. MacDonald and F.O. Smith in relation to the importance of the requirement to hail as an enforcement tool to aid in the achievement of the objectives of the Fisheries Act .

I accept that this requirement provides an additional, important element of supervision to the requirement of 100% Dockside Monitoring, and enhances the likelihood of compliance with fishing licenses and reduces the risk of fraud and/or collusion in the industry. 142 ) I am satisfied that the provision is directly related to the objectives of the Fisheries Act . I am not persuaded that the provision is arbitrary or overbroad. 143 ) I find that it is not necessary for the license provision, or the Court

interpretation thereof, to express the legal requirement to make an accurate hail in terms of a percentage variance from the actual weight. Arbitrary Enforcement 144 ) I accept the evidence of both F.O. MacDonald and F.O. Smith. 145 ) The evidence of F.O. Smith, the charging officer, who has 26 years of experience as a Fisheries Officer, was that the requirement to make an accurate hail meant that the hail must be accurate.

He did not agree with Defence counsel’s suggestion that the term accurate allowed for a percentage variance between the reported round weight of fish on board and the landed weight (converted back to round weight). He referred to another captain whose hail was off by 2% as “pretty accurate”. 146 ) I accept the evidence that F.O.Smith and other fisheries officers do not charge every vessel operator who fails to make what they consider an accurate hail.

There are no guidelines to assist fisheries officers in the exercise of their discretion to charge where an offence has been committed. 147 ) I accept the evidence that F.O. Smith considers a number of factors when exercising discretion, including the size of the vessel, the experience of the captain, and the captain’s history of compliance. I accept his evidence that, where as in this case there is a variance of more than 20%, he always lays a charge.

I find that, the accused was treated the same as all others whose reported weight of fish on board was more than 20% less than the landed weight recorded. 148 ) There was no evidence put before the Court to establish the practice of other fisheries officers, nor industry norms in terms of percentage variances between hailed weights of fish and landed weights. 149 ) In the present case, I find that the degree of variance between the accused’s reported round weight of halibut on board the vessel and the landed round weight was the sole determinative factor in F.O.

Smith’s decision to lay the charge against the accused. I find that Captain Henneberry’s history of compliance was not a factor in F.O. Smith’s determination that he had failed to make an accurate hail. Further, I accept the evidence of F.O.

Smith that, given the variance between the accused’s hailed weight and landed weight his history of compliance was not a factor in his exercise of discretion to charge Captain Henneberry. 150 ) Consequently, I find it unnecessary to state whether a captain’s history of compliance is an appropriate consideration in determining whether an offence has been committed or whether it is a proper consideration in relation to a fisheries officer’s exercise of discretion whether or not to lay a charge. 151 ) On the facts of this case as I find them, I am not persuaded that the enforcement of the accused’s license provision was arbitrary. 152 ) The Defence Motions are dismissed.

The Charge

153 ) Tyler Patrick Henneberry was charged that he on or about the 23 rd of December, 2013, at or near Fishing Zone 3PS, within Canadian fisheries waters adjacent to Nova Scotia, did, while carrying out an activity under the authority of a licence, contravene any condition of the licence, to wit failed to hail the accurate round weight of fish on board the vessel by individual species, contrary to s. 22(7) of the Fishery (General) Regulations, SOR/93-53, thereby committing an offence under s. 78 of the Fisheries Act . 154 ) The requirement to make an accurate hail requires that the vessel’s operator make as precise a report of the round weight of fish on board the vessel by individual species as can be accomplished with the exercising of care in completing the task. 155 ) Captain Henneberry’s evidence detailed the process of catching halibut at sea, the hours worked, the harsh weather, the fatigue factor, etc.

While the Court accepted his evidence in relation to the difficulties and challenges involved in fishing, in relation to his obligation under the fishing license to make an accurate hail, the Court found his approach to the task bordered on cavalier. 156 ) He referred to the making an assessment of the weight of halibut in a pen as “eyeballing it” and “guesswork”. He indicated that, due to fatigue, at times he couldn’t say if he was recording kilograms or pounds. When he wasn’t awake while fishing occurred, he accepted the report of the person left in charge.

There was no evidence he made any secondary assessment to confirm their report. 157 ) He didn’t believe halibut could be weighed on the ship at the time caught and wasn’t prepared to consider the practice even if other long line fishers were doing so. 158 ) I find that the accused’s report (hail) of the round weight of halibut on the vessel was far from precise. The variance of 4,921 pounds was 28% less than the reported weight and 22% less than the landed weight. 159 ) The degree of variance alone may persuade a trial judge that the accused failed to exercise care in making the hail.

In the present case, I needn’t rely only on that factor. Based upon the accused's evidence, I find that the accused did not exercise care in completing the task of reporting the round weight of fish on board the vessel, the Ivy Rose and failed to comply with his license requirement to make an accurate hail. Defences 160 ) The Defence evidence does not persuade the Court that the accused exercised all due diligence to prevent the commission of the offence, nor that he reasonably and honestly believed in the existence of facts, that, if true would render his conduct innocent.

Conclusion 161 ) I find the evidence established proof beyond a reasonable doubt that the accused committed the alleged offence. 162 ) I find the accused guilty as charged.