R. v. McKinnell Fishing Ltd., 2016 BCSC 312

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McKinnell Fishing Ltd., 2016 BCSC 312 Date: 20160225 Docket: 34381 Registry: Duncan Between: Regina Appellant And McKinnell Fishing Ltd. Respondent Before: The Honourable Mr. Justice Baird On appeal from: An order of the Provincial Court of British Columbia, dated the 16th day of July 2015 (Regina v. McKinnell FishingLtd. Provincial Court File No. 34381) Counsel for the Appellant: J. Lawn T. JohnsonCounsel for the Respondent: C. Harvey Q.C.Place and Date of Hearing: Duncan, B.C. January 8, 2016Place and Date of Judgment: Duncan, B.C. February 25, 2016 Introduction [1] The Crown appeals from acquittals entered in Provincial Court on

summary conviction charges brought against the respondentMcKinnell Fishing Ltd. under the Fisheries Act R.S.C. 1985 c.F-14 (the “Act”). [2] The offences fall into two categories charged as violations of

section 78(

a) of the Act: five counts of fishing for dungeness crabby trap during a closed time contrary to

section 63 of the Pacific Fisheries Regulations SOR/93-54, and two counts of failing to complywith fishing licence conditions by not keeping accurate crab harvest logs contrary to section 27(7) of the Fishery (General) RegulationsSOR/93-53. [3] The overall objective of the Act and its Regulations is to control, conserve and protect coastal fisheries in the public interest.The offences in question fall within the strict liability category discussed in R. v. Sault Ste. Marie, (SCC), [1978] 2S.C.R. 1299.

The learned trial judge found that the actus reus of each offence had been proved beyond a reasonable doubt, but sheacquitted on the basis that the respondent had exercised due diligence as that term has been codified in

section 78.6 of the Act whichreads: Due diligence defence 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] The issue on this appeal is the correctness of the trial judge’s application of this defence to the facts as she found them. Background [5] The Act decrees that coastal waters are closed to crab fishing at all times except if declared open by means of something calleda variation order. The variation orders relevant to the present case refer to waters in the vicinity of Penelakut Island.

Here, divided onlyby a thin red line on a survey map, there are areas open to the commercial crab fishery directly adjacent to areas which, for public healthor fisheries management reasons, are well-known to be either permanently closed or closed for months of each year. Although the Act

refers to open or closed times, it is simpler to discuss what happened by reference to open or closed areas. [ 6 ] The case brought into question the crab fishing activities of Mr. Kevin McKinnell, an officer of the respondent company and principal operator of one of its vessels called Mean Streak . I propose to refer to Mr. McKinnell throughout this judgment rather than to the company, as he was the only defence witness at trial and the only person aboard Mean Streak when the offences under consideration were alleged to have been committed. [ 7 ] Mr.

McKinnell is a third generation crab fisherman with many years of experience in this highly regulated and competitive business. He operates under the terms of a federal licence issued by the Department of Fisheries and Oceans (“DFO”) requiring him to abide by a host of terms and conditions. The better to assure compliance with these conditions and the strict rules of the crab fishery, Mean Streak is equipped with electronic devices required by federal law so that its location and activities can be monitored by DFO. [ 8 ] Each of Mr.

McKinnell’s traps, for example, must be fastened with a government issued identification tag which he is obliged by the terms of his licence to scan using a special wand or reader when he hauls it aboard his boat. The scan yields GPS coordinates by which DFO can track the precise location of the vessel when each trap is brought on deck. It is by this means alone, apparently, that DFO purports to monitor compliance with closed area restrictions such as those that occupied the court at trial.

The system is designed, in other words, so that trap locations are recorded only when they are hauled, not when they are set. [ 9 ] Mean Streak is permitted to carry 20 crab traps at a time which Mr. McKinnell baits and sets at intervals on a length of line that he feeds into the water and attaches to a buoy for ease of retrieval. The traps are left at bottom to be collected within a maximum period fixed by legislation of 18 days. Crabs enter the traps by means of one-way doors which close behind them preventing escape. Mr.

McKinnell hauls in his traps with a hydraulic winch and once they leave bottom there is no question of any more crabs getting in. [ 10 ] Mr. McKinnell’s licence specifies that he must maintain and submit complete and accurate daily logs setting out fishing locations and crab harvesting information required by DFO to monitor, assess and manage crab stocks. The Trial i. Illegal Fishing [ 11 ] Mr. McKinnell fishes in the waters around Penelakut Island all the time. He knows about the open and closed areas relevant to this appeal and the location of the boundaries between them.

Here again his compliance with the rules is assisted by on-board technology: the closed area boundaries are programmed into his electronic navigation system and an alarm is activated whenever he crosses into closed water. [ 12 ] Mr. McKinnell testified that he always sets his traps in the same locations within but at the very outer extremity of the open areas in question. He does this because there are more crabs for the taking on the verge of an area where fishing is prohibited.

Dropping a trap line just shy of the boundary is not only legal but in keeping with the established practices of the local crabbing industry. Acquiring a spot on the perimeter of an open area is a coveted privilege distributed amongst members of the commercial fishery on the basis of seniority. [ 13 ] The difference between setting and retrieving crab traps was central to the case. The evidence failed to establish that Mr. McKinnell had ever actually set his traps in a closed area. The trial judge’s reasons started from the proposition, therefore, that at all times his traps were lawfully set in open areas.

There was no quarrel with this reasoning on appeal. However, on each of the illegal fishing counts on which Mr. McKinnell was acquitted, it was conceded that Mr. McKinnell had hauled and scanned his traps while Mean Streak was situated within, and occasionally well within, areas that were closed to crab fishing. [ 14 ] The Crown argued that Mr. McKinnell’s actions in hauling and boarding his traps constituted an integral part of fishing as that term is defined in

section 2 of the Act : fishing for, catching or attempting to catch crabs by any method. The defendant denied this was so, and argued that the act of fishing was over and done with as soon as each trap was lifted from the ocean floor, it being practically impossible thereafter, as previously stated, for more crabs to be caught on the way to the surface. [ 15 ] Other than this, the main thrust of Mr. McKinnell’s testimony was that since his traps were set in open areas, it did not matter that he hauled and boarded them within closed areas.

Illegal fishing in this sense was inconsequential — n o harm was done to the objectives of the Act and Regulations. Each proven instance of transgression, he said, was an innocent and unavoidable concomitant of fishing the boundaries. [ 16 ] Mr. McKinnell’s explanations for his conduct were threefold: either he had been too busy hauling traps to prevent Mean Streak from drifting into forbidden water; or he had been pushed over the boundary by winds or currents; or his trap lines had been dragged into closed areas by other fish boats or freighters going to anchor.

His testimony on this subject was encapsulated in an excerpt of his cross- examination which the trial judge quoted verbatim in her reasons. He said, essentially, that whether he hauled his traps in open or closed areas depended on a variety of factors such as wind and tide that changed from day to day. [ 17 ] The trial judge found that the external elements of illegal fishing had been proved beyond a reasonable doubt and explicitly acknowledged that Mr. McKinnell’s non-compliance with the law had much to do with operating so close to the boundaries.

However she held that his evidence was consistent with his travelling into closed areas solely for hauling and scanning his traps, and then only under conditions that were beyond his control. She concluded: “In this case I am satisfied on the evidence of Mr. McKinnell that [he] took all reasonable steps to avoid fishing in a closed area but that from time to time [he] unavoidably hauled traps in a closed area.” ii. Harvest Logs [ 18 ] The evidence clearly established that Mr.

McKinnell violated the terms of his licence by providing incomplete, inaccurate or false logs of fishing location and crab harvesting information. The trial judge found that Mr. McKinnell could easily have detected and avoided these mistakes but failed to do so. She observed, furthermore, that Mr. McKinnell’s non-compliance was not limited to the

occasions referred to in the information but had persisted for many years before that. [19] In this connection Mr. McKinnell testified, with commendable candour, that he had not read the conditions of his licence andhad never properly figured out what was required. The trial judge emphasised that ignorance of the law was no excuse, but after so manyyears of overlooking Mr. McKinnell’s transgressions, she thought it was unfair that the authorities proceeded directly to charges withoutfirst issuing a warning. In the absence of warning or notice, the trial judge found that Mr.

McKinnell “had a reasonable belief that [he]was complying with the conditions of his licence and exercised due diligence in those circumstances.” The Appeal [20] The Crown may appeal from the dismissal of charges on an information based on a ground of fact, mixed fact and law, or lawalone: Regina v. Labadie, 2011 ONCA 227 at para. 50. The legal effect of the trial judge’s findings of fact, and in particular whether thedefence of due diligence was properly applied to those facts, is a question of law: R. v. Morin, (SCC), [1992] 3 S.C.R.286, at 294; R. v.

J.M.H., 2011 SCC 45, [2011] 3 S.C.R.197, at para. 28; and R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para.48. The standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33. [21] The facts as found by the trial judge were not disputed. I agree with her conclusion that the external elements of all the offencesunder consideration were established beyond a reasonable doubt. I respectfully disagree, however, that

section 78.6 of the Act had anyapplication to the facts. In my view, to the contrary, Mr. McKinnell’s testimony failed to set out any legally adequate measures taken tocomply with or to avoid contravening the Act or its Regulations. i. Illegal Fishing [22] As a matter of general observation, Mr. McKinnell must be taken to know the conditions of his commercial fishing licence andthe full content, scope and application of the fisheries laws and regulations that relate to his activities. Ignorance of these things is nodefence.

It is against this specialised duty of care and diligence that the offending conduct in this case must be evaluated, not somegeneral or conventional conception of reasonable conduct: see Regina v. Imperial Oil, 2000 BCCA 553 at para. 23; R. v. Alexander,[1999] N.J. No. 19 at para 18 (N.L.C.A.) [23] Mr. McKinnell’s primary argument in this court, as at trial, was that he was not “fishing” within the meaning of

section 2 of theAct and therefore committed no offence. In my view, however, the trial judge’s reasoning on this score was unassailable. The legalmeaning of “fishing” has been well canvassed in cases going back as far as The Ship Frederick Gerring Jr. v. The Queen (1897), 1897CanLII 84 (SCC), 27 SCR 271 and proceeding through more contemporary authorities such as R. v.

Denton (1991), (NS CA), 105 N.S.R. (2d) 357 (C.A.), a decision, by the way, which is comfortably analogous to the one at bar and whose reasoning Iwould respectfully adopt. [24] I agree entirely with the trial judge that the term “fishing for crabs” includes not only setting the traps but retrieving them fromthe depths and reducing their contents to useful possession on board ship. It follows that Mr.

McKinnell was, indeed, fishing illegally atthe material times and his primary answer to the charges was founded on a misunderstanding of the law which affords him no defence.As otherwise there was no question of honest but mistaken belief under

section 78.6(

b) of the Act — nothing, for example, equivalent toCaptain Starvish’s bent window stick: see R. v. Starvish (1987), 78 N.S.R. (2d) 136 (C.A.) — Mr. McKinnell can only escape liabilityunder

section 78.6(

a) by establishing that he took all reasonable care, in the specific instances proved, to fulfil his legal duty as a licencedcrab fisherman not to contravene the Act and Regulations. [25] On this point I regret that I must

part company with the trial judge. It was her judgment that the lawful activity of setting trapsalong the boundary of open areas made it inevitable that during hauling vessels would stray into closed ones, and that when it came todue diligence the question was whether this happened too often. “If it were the case”, she said, “that [Mr.

McKinnell] routinely hauledand scanned [his traps] in the closed areas, and his incursions were of such a degree that they appear more purposeful than accidental, acase might be made for lack of due diligence.” [26] This formulation failed to affirm the signal legal necessity of strict rather than indifferent or intermittent compliance with publicinterest laws and regulations. The question here is not if Mr. McKinnell violated the law by a reasonable amount, but whether, in everyinstance where he was proved to have done so, he took all reasonable steps to avoid it.

Furthermore it was not the prosecution’s burden toprove that the defence had no application, but for Mr. McKinnell to prove that his actions on each count amounted to due diligence. [27] In my opinion, Mr. McKinnell’s testimony on each illegal fishing offence, taken at its highest and best, fell a good distanceshort of establishing due diligence. He was not able to be specific about why he hauled his traps in closed areas on any occasion wherehe was proved to have done it.

He could testify only in generalities, reconstructing events by looking at charts and guessing orspeculating about how or why he had crossed the line. Proper evidence of due diligence, by contrast, goes to show in a positive way thatthe requisite care was taken to avoid the result forbidden by law in the specific instance: R. v. Imperial Oil at para. 23. [28] Furthermore, precisely because Mr. McKinnell’s practice is to fish right along the boundaries and the risk of contravening theclosed area regulations is correspondingly high, in my view a commensurate degree of preventative vigilance was required.

Failure toaccount for such readily foreseeable factors as tide, wind and current constitutes no good answer to the charges of crossing the line: seeR. v. Larden, 15 March 1991, Victoria No. 53901 (B.C.S.C.). To the contrary, everyday variables of this sort must be factored into Mr.McKinnell’s business activities to guarantee that he discharges his strict responsibility to comply with fisheries law: R. v. Truong, 2000BCPC 143. [29] Mr. McKinnell is not entitled to devise a personal scheme of compliance with a regulatory regime intended to apply equally andconsistently to everyone.

Neither can he avoid conviction by claiming, as he did inferentially in this case, that the enforcement scheme ofthe Act and Regulations is not flexible enough to account for the exigencies of his practice of fishing the boundaries: R v. Alexander atpara. 17. Such a claim amounts to a collateral attack on the regulation in the guise of due diligence: R. v. Consolidated Maybrun Mines

Ltd. (1996), (ON CA), 105 C.C.C. 388 at 415 (Ont. C.A.) [30] On the subject of the foreseeability of harm as it relates to due diligence I bear in mind the following observations from R. v.MacMillan Bloedel Ltd. (2002), BCCA 510 at para. 49: Foreseeability of a risk of harm is central to the concept of negligence.

To quote the famous dictum of Lord Atkin in Donoghue v.Stevenson, (FOREP), [1932] A.C. 562 at 580, "You must take reasonable care to avoid acts or omissions which youcan reasonably foresee would be likely to injure your neighbour." In the context of the defence of due diligence in relation to strictliability offences, the harm is not injury to a neighbour, but the contravention of the relevant statute. [31] I can find nothing in Mr. McKinnell’s testimony to show that he took all or indeed any reasonable steps to avoid harm in thisspecialised legal sense.

I would expressly include in this observation those instances where Mr. McKinnell speculated that his trap linemust have been dragged into closed areas by shipping traffic. Leaving aside the point already made about speculative testimony, Mr.McKinnell testified that these things happened “lots of times”, and yet nowhere in the trial record was there evidence of any meaningfulsteps taken to prevent their recurrence. ii. Harvest Logs [32] Mr. McKinnell conceded that he had failed to keep proper crab harvest logs, not only on the occasions referred to in theinformation, but for a decade or more beforehand.

His evidence, as previously mentioned, was that he had never learned what wasrequired to make accurate records. A reasonable belief in compliance cannot proceed from his failure to learn the terms and conditions ofhis licence: see R. v. Careen (1992), (NL SC), 102 Nfld. and P.E.I.R. 132 (Nfld. S.C.T.D.). iii. De Minimus Non Curat Lex [33] For the first time on appeal the respondent made an argument based on the principle de minimus non curat lex (the law does notconcern itself with trifles).

I decline to deal with the appellant’s objections to this procedure as I have decided that the principle has noapplication at bar. [34] One of the two closed areas relevant to this case is permanently off limits because it is badly polluted. Crabs taken from withinit may be poisonous and therefore dangerous to public health. The other closure is intended to preserve an aboriginal fishery, a measuretaken by Parliament to ensure the equitable sharing of a common and valuable resource.

Properly recorded and submitted harvest logs,for their part, permit DFO to monitor and assess crab stocks in an age where the fishery is under stress and there are concerns aboutsustainability. [35] Far from being trifling matters beneath the law’s notice, these are important considerations that are intimately connected to theobjectives of the Act and Regulations. Strict compliance with the rules under consideration and consistent enforcement of prohibitionsagainst their infringement are vital to the public interest. There is no margin for “almost” or “close” compliance: R. v. Croft, 2003 NSCA109.

Disposition [36] The appeal is allowed. The acquittals are set aside and convictions are substituted in accordance with the rationale articulated inR. v. Labadie at para. 61. In my view the record of the present dispute is complete and the interests of justice do not require a new trial. [37] The matter is remitted to the trial judge for the imposition of sentence in conjunction with the three counts not subject to thisappeal upon which she found the respondent guilty. “Baird J.”