R. v. Leask Date:, 2012 BCPC 423

Citation: R. v. Leask Date: 20121107 2012 BCPC 0423 File No: 35573-1; 35573-2-A Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VERNON EUGENE LEASK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: K. Simonett Counsel for the Defendant: E. Chesterley Place of Hearing: Campbell River , B.C. Date of Hearing: November 7, 2012 Date of Judgment: November 7, 2012

[ 1 ] THE COURT (orally): Vernon Eugene Leask is before me on two Informations. The first Information is the lead Information, 35573-1, it contains two counts.

The first count of the Information reads as follows: Vernon Eugene LEASK, on or about the 24th day of August, 2010, near the city of Campbell River, in the Province of British Columbia, in Canadian fisheries waters, being a person carrying on an activity under the authority of a fishing licence, to wit: Salmon Area B commercial fishing licence, did fail to comply with a condition of the licence, to wit: did fail to make a hail-out report, contrary to section 22(7) of the Fishery (General) Regulations, thereby committing an offence contrary to

Section 78 (

a) of the Fisheries Act of Canada . [ 2 ] Count 2 provides as follows: Vernon Eugene LEASK, on or about the 24th day of August, 2010, near the city of Campbell River, in the Province of British Columbia, in Canadian fisheries waters, being a person carrying on an activity under the authority of a fishing licence, to wit: a Salmon Area B commercial fishing licence, did fail to comply with a condition of the licence, to wit: did fail to maintain a functioning revival tank in accordance with the terms of his commercial licence, contrary to section 22(7) of the Fishery (General) Regulations, thereby committing an offence contrary to

Section 78 (

a) of the Fisheries Act of Canada . [ 3 ] The second Information that is before me is on 35573-2-A. It is a single-count Information. It alleges as follows: Vernon Eugene LEASK, on or about the 12th day of September, 2011, at or near the City of Campbell River, in the Province of British Columbia, being at large on an undertaking given to a Justice or a Judge, did fail without lawful excuse to attend court in accordance with the undertaking, contrary to Section 145(2) (

a) of the Criminal Code . [ 4 ] I note that Crown has not entered any evidence with respect to Count 1 on File 35573-2-A. Accordingly, I will dismiss Count 1 on that Information. [ 5 ] On the other two count Information, Crown called three witnesses to testify. They were all, at the time of the alleged offences on the 24th day of August, 2010, Fisheries Officers in the employ of the Department of Fisheries and Oceans. They were as follows: now retired Fisheries Officer Hugh McPherson, Fisheries Officer Greg Rusel, and Fisheries Officer Roger Ian Douglas. [ 6 ] The sole witness called on behalf of the accused, Mr.

Leask, was Mr. Leask himself. [ 7 ] Each of the Fisheries Officers, I note, are experienced Fisheries Officers. They were, at the time of the alleged offences on the 24th of August, 2010, conducting a regular Fisheries patrol in the area known as Bear Bite, which is located in Johnson Strait near Kelsey Bay and the Sayward area, just off of Telegraph Cove, all being areas on or adjacent to Vancouver Island. [ 8 ] As part of their regular Fisheries patrol, they were in the process of observing various salmon fishing vessels which were engaged in fishing in that particular area.

The area itself falls within an area designated as Salmon Area B. The Salmon Area B is an area lying southerly and adjacent to the more northerly fishing waters of Salmon Area A, which, as I understand it, are in the vicinity of the North Coast and Prince Rupert area. [ 9 ] There is no issue that at the time that the Fisheries patrols were being conducted, that the area in question was open for fishing, and in particular it was open for seine fishing. The Fishery was open for the purposes of catching Sockeye.

It was closed for the fishing of Coho or Chinook. [ 10 ] The Fisheries Officers observed a vessel named The Attu . The Attu was skippered by the accused, Mr. Leask. The Fisheries Officers had in their possession a record of various vessels who had complied with the requirement to obtain a number which is issued by the Archipelago Marine Research ("AMR"). I understand AMR to be a contractor for the Department of Fisheries. They issue licensed commercial fishermen with numbers which are referred to as hail-out numbers. The hail-out numbers are given to fishers who have commenced fishing in a designated area.

Once a hail-out number is issued it is a requirement that the hail-out number be recorded in the log book for the vessel. [ 11 ] As I understand from the evidence I have heard, a hail-out number is obtained prior to the fishing vessel engaging in fishing, and also a hail-out number is thereafter obtained when the vessel ceases its fishing operations. [ 12 ] As noted above, the Fisheries Officers on this occasion had in their possession a listing of various fishing vessels that had obtained a hail-out number. One of the vessels that was observed in the area that they were patrolling was The Attu .

The Attu did not appear on the list of vessels that had been issued a hail-out number. [ 13 ] Accordingly, the Fisheries patrol vessel, which was, as I understand it, a Zodiac-type vessel, came alongside of The Attu . The observation that they made was that The Attu was engaged in an operation known as brailing. Brailing was described in the evidence as occurring after a seine purse has been pulled up and the bag has formed, thereby capturing the fish.

The seine purse is then pulled alongside of the vessel, and brailing occurs consisting of the dipping of a net system into the purse in order to bring the catch aboard the vessel. [ 14 ] The purpose in doing so is partly to ensure that there is not a significant amount of what is referred to as bycatch; that is taking fish that are not subject to the Fisheries opening at that particular time.

In this case, the bycatch that would have been of great concern to the Fisheries Officers would have been any Coho or Chinook, which, as I understand their evidence, are fish species that are at some risk. [ 15 ] Accordingly, those fish, if caught as part of a bycatch, would be placed in what is commonly referred to as a revival tank. I

received evidence as to the operation of a revival tank. The revival tank is intended to permit any of the injured bycatch that are to be returned to the ocean an opportunity to recover. That recovery process entails the flowing of cold, fresh salt water over the fish thereby permitting them to oxygenate themselves before they are then returned into the ocean. [ 16 ] The arrival of the Fisheries vessel at the side of The Attu led to some discussions between the skipper of The Attu , Mr. Leask, and Fisheries Officer McPherson.

As a result of the discussions, Fisheries Officer McPherson was concerned that The Attu did not have a hail-out number. Accordingly he, along with Fisheries Officer Rusel, boarded The Attu for the purposes of conducting an inspection. [ 17 ] There does not appear to be any issue as to the reasonableness of their boarding of the vessel. In fact it appears that the accused, Mr. Leask, was fully cooperative and compliant with the request to board the vessel. [ 18 ] Upon boarding the vessel, a further discussion took place between the Fisheries Officers and Mr. Leask. It is clear from the evidence that Mr.

Leask had already been engaged in some fishing activity. Mr. Leask both confirmed in his discussions with the Fisheries Officers, as well as in his own evidence, that they had arrived and anchored up in the location for the fish opening the previous evening. The following day they had proceeded to start fishing later than most of the other vessels that had congregated in the fishing area. [ 19 ] The difficulty that The Attu faced was the inability of Mr. Leask to contact the agency, AMR, for the purposes of acquiring his hail-out number.

He noted that his cellphone coverage was very weak in the area where he was anchored up. In fact, it was only once he got away from the bluff on Vancouver Island that he was able to observe that he had some cell coverage. [ 20 ] He was awaiting his particular turn in order to make his set or to put out his nets. The evidence before me was that there were at least two unsuccessful sets that had been completed by The Attu prior to the arrival of the Fisheries Officers. It was during the third set that the Fisheries Officers actually had come upon and started to board The Attu . [ 21 ] In questioning Mr.

Leask, it became apparent to the Fisheries Officers that he did not have his hail-out number officially recorded or actually issued to him. It appears from the evidence that he was in the process of attempting to obtain that hail-out number over his cell phone, but had been placed on hold. [ 22 ] He did procure his hail-out number very shortly after the Fisheries Officers arrived onto The Attu .

However, at the time of the inspection of the ship's log by Fisheries Officer McPherson, there was no notation of the actual hail-out number. [ 23 ] I am satisfied on the evidence that the hail-out number was actually obtained after the fishing activity of The Attu took place. [ 24 ] The Fisheries Officers also noted that there did not appear to be any water flowing off of the deck through the scuppers of the vessel The Attu , which would normally be the situation that would be observed if there was a revival tank in operation. [ 25 ] The Fisheries Officer Douglas raised the issue with the crew of The Attu ; from their inspection it became apparent that The Attu was equipped with a revival tank.

However, the revival tank was filled with a product known as champagne ice, usually used to cool or keep fish chilled and in a fresh condition. In addition to the champagne ice, there were a number of bottles of drinking water in the revival tank. [ 26 ] The Fisheries Officers instructed one of the crew members who, as it turns out, was a long-time and experienced member of Mr. Leask's crew, being a gentleman by the name of William Alexi to start the revival tank. He served as an engineer aboard The Attu .

He is also the individual who was the designated crew member responsible for ensuring that the revival tank was in operation. [ 27 ] I understand that at the time that the Fisheries Officers boarded the boat, the revival tank was not actually hooked up to a hose system.

The hose system at the time in question was required for both the functioning of the revival tank, as well as used for the wash down and clean out of the vessel during fishing operations. [ 28 ] The result was that when the engineer started the pump system in order to start putting water into the revival tank, the water that came out of the hose appeared to be dirty water, rather than the clean, fresh seawater that is required for the proper operation of the revival tank. [ 29 ] The evidence that I heard from Mr.

Leask is that the fresh seawater is drawn into a system consisting of a pipe connected to a through-hull fitting, which then connects to a lengthy metal pipe system leading to a stanchion, to which the hose is attached. The usual procedure employed on The Attu was to allow the water to run for 10 or 15 seconds, in order to allow the water to clear of sediment in the system before the water was placed into the revival tank system. [ 30 ] The observations made by the Fisheries Officers led them to believe that the revival tank system was not in an operative condition.

There is photographic evidence before me which clearly demonstrates that the water in the revival tank system appears to be of poor quality. [ 31 ] The concerns of the Fisheries Officers resulted in them leaving The Attu for the purposes of having discussions. As a result of those discussions, Fisheries Officer McPherson issued the offence notices to Mr. Leask which is the subject matter of Counts 1 and 2 on Information 35573-1. [ 32 ] The offences arise out of what I understand to be the conditions of the vessel's 2010/2011 Salmon Area B Licence.

They were put into evidence as an exhibit, being Exhibit Number 4. [ 33 ] I should note that the conditions contain no less than 12 pages. There is no issue that these are the conditions that were in effect at the time that the two offences are alleged to have occurred. [ 34 ] The two relevant sections of the conditions are as follows. Under paragraph 5(8), the following appears, and I quote:

While fishing for salmon, the licensed vessel shall be equipped with a revival tank, the purpose of which is to temporarily hold and revive injured, stressed or weak fish which the vessel is prohibited from retaining. Those salmon and steelhead that are injured, weak or appear dead shall be placed in the revival tank until revived to a vigorous condition or for at least one hour and then released back into the water from which they were caught in the manner that causes the least harm.

The revival tank shall: a. be constructed of non-transparent material; b. be designed to hold a minimum of 250 litres of water; c. have inside dimensions of which two must be a minimum of 90 cm x 49 cm; d. be equipped with a tight fitting lid; e. be in operation at all times while the seine net is in the water, from the initial setting to the final retrieval back on board, and while fish are being held in the tank; f. at all times while in operation, be full of water that is continually exchanged with water drawn directly from overboard, at a rate of 90-110 litres (20-24 Imp gal) per minute; g. be kept clean and in operable condition; and h. shall not be used for any purpose other than that outlined above. [ 35 ] The passage that I quoted from is found at page 5, and is located under paragraph 5, which is under the heading "Type, size, and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is to be used". [ 36 ] The next

section of the licence which is applicable to the matters before me is found under heading 8, which is entitled, "In-season Reports"; it is found at page 7, and it reads as follows:

(1) Start Fishing Report: (

a) Prior to beginning fishing on a fishing trip, the vessel master shall (

i) obtain a Trip Identification Number; and (ii) record the Trip Identification Number in the appropriate space in the harvest log; (

b) To obtain a Trip Identification Number, the vessel master using paper harvest logs shall provide the following information to the salmon catch reporting service provider who will ensure the information is entered into the Salmon Fishery Database: (

i) harvest log identification number; (ii) Salmon Licence Area; (iii) vessel master's name and Fisher Identification Number; (iv) intended fishing start date; and (

v) area to be fished. [ 37 ] The reference to the Trip Identification Number is what has been referred to in the evidence as the hail-out number. [ 38 ] The accused, Vernon Eugene Leask, is 56 years of age. He is a member of the Metlkakatla Band which, as I understand it, is located in the area south of Prince Rupert. He is married with three children. His son is a skiffman who works on The Attu with him. [ 39 ] Mr. Vernon Eugene Leask works for both his band, as well as for other bands in the fishing industry. He has been in the fishing industry himself for a period of approximately 35 years.

He has fished on a seiner and has been the captain of a seiner for a period of about 30 of those 35 years. He started his work in the industry as both a skiffman and also a beachman; in other words, working his way up through the various positions. [ 40 ] He has run The Attu for the last five and a half years. He is not the owner of the vessel. The vessel is owned by Sue Arnet of North Vancouver. It is a large vessel, 23 metres in length, and it is a steel-hulled vessel. It is also licensed for roe herring, and Mr. Leask takes the vessel and his crew out for that particular purpose.

[ 41 ] He holds a certification and it is a 60-ton haul paper qualification. He indicates that he has what is referred to as a "grandfather ticket". He received that qualification some 15 years ago. [ 42 ] He employs a very experienced crew. That crew includes his wife, Crystal, his son, Vance, his brother, Clyde, and then the engineer, Mr. Wayne Alexi. [ 43 ] The evidence about the engineer is that he has been with and worked for and under the direction of Mr. Leask for several years. Mr. Leask describes his engineer as a very reliable individual.

He is experienced in the operations of both the vessel, as well as the revival tank. [ 44 ] The evidence that I have received from Mr. Leask is that over the number of years that the engineer has worked for him, he has never had a concern or problem with the engineer failing to perform any of the duties that were assigned to him. [ 45 ] Mr. Leask also testified that he specifically had discussions with the engineer the previous evening about ensuring that the recovery tank was in operating condition, ready for the fishing that was to take place the following day.

It seems from the evidence that I have heard that Mr. Leask was aware that while the vessel was travelling to the fishing grounds, the crew members had placed ice into the revival tank. This was for the purposes of cooling down the dozen bottles of water, so that they would have cold drinking water while undertaking the heavy labour associated with the operation of the seine boat. [ 46 ] The evidence of Mr. Leask is also that, so far as he was aware, at the time that the fishing activities got underway, the revival tank was in full operation.

From his location on the bridge of The Attu , he did not have a clear view of the revival tank. He did at one point leave the bridge of The Attu and proceed down the starboard side of the vessel, which was away from the revival tank located on the port side of the vessel. [ 47 ] The evidence is that the tank was in an operative condition. But it is admitted by Mr.

Leask that, contrary to his instructions, the tank was not connected by the hose system, which would normally provide the flow of water required, such that the revival tank would be in an operating condition. [ 48 ] As a result of the difficulties that occurred on August 24, 2010, I am given to understand that Mr. Leask, as the skipper of The Attu , has subsequently introduced some new procedures that include the installation of a permanent hose system that is constantly attached to the revival tank. This avoids the necessity of utilizing the wash-down hose for dual purposes.

Also, he has instituted a policy that no other products or items are to be placed into the revival tank. [ 49 ] Mr. Leask is clearly a very experienced and competent skipper. He testified, and I accept his evidence, that he is not an individual who fails to fully comply with both the Fisheries Act and the various Regulations or the conditions attached to his licence. In fact, he indicates that he has never been charged with failing to get a hail-out number. He maintains his log book in a meticulous fashion.

It is clear to me from his evidence that he finds the circumstances in which he has been charged to be embarrassing to him personally and in a professional sense. [ 50 ] I note that he does admit that he had one previous violation several years ago. That resulted from the retention of some bycatch. He says that he was unaware that it had found its way into the stock of fish that was aboard his boat, until he was inspected. He indicated that this breach was a very honest mistake.

He also indicated that, as a result of that experience, the procedures used aboard his vessels were changed in order to ensure that there would not be any violations of those types of regulations. [ 51 ] Based on the evidence that I have heard, there is no doubt that the revival tank was not in operation as it should have been in accordance with the conditions of the licence of The Attu . The defence advanced in this case, with respect to the revival box infraction, is that Mr. Leask has satisfied the requirements of the saving provision contained within s. 78.6 (

a) of the Fisheries Act . It raises what is referred to as a defence of due diligence.

Section 78.6 reads 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 to prevent the commission of the offence . . . [ 52 ] I also understand that Mr. Leask is raising that provision as a defence to not only the charge under the second count with respect to the revival tank, but also with respect to the hail-out report charge. [ 53 ] With regard to that aspect of the defence, and specifically with respect to the hail-out number offence, it is contended by the defence on behalf of Mr.

Leask as follows: first of all, he tried to obtain a hail-out number; second, that he is diligent in maintaining his log book and has not been a person who has demonstrated a lack of awareness of either the requirement for maintaining the log book or having the hail-out number in place. But it is contended that there are unexpected circumstances where fishers, including Mr. Leask, may not because of reception problems, always be able to acquire their hail-out number at precisely the time that they wish to.

I understand that those facts are raised as part of the due diligence defence with respect to the hail-out offence under Count 1. [ 54 ] With respect to the due diligence defence raised with respect to the revival box, it is contended on behalf of Mr. Leask that, had he known that the revival tank was not operating at the time in question, and having observed the marked Fisheries vessel coming towards him, he would have taken steps to rectify that situation prior to being boarded.

However, based on the evidence, it was not until the Fisheries Officers arrived on the vessel that he became aware, from their inspection, that the revival tank was not operating as it should have been. [ 55 ] Having delegated that responsibility to the engineer, both prior to fishing commencing and subsequent to the arrival of the Fisheries Officer, it is contended by the defence that the due diligence defence is available to Mr. Leask in these circumstances.

[ 56 ] Of particular note in the defence's submission is the reliance on the fact that the engineer was known to Mr. Leask to be a very reliable employee and crew member. [ 57 ] Crown contends that their case has been made out against Mr. Leask. They indicate that the offences which have been committed under the requirements of the licence are the failure to have the Trip Identification Number inserted in the log book prior to the actual fishing activity taking place. They contend that the fishing activity started with the first set of the net. It was at that time steps should have been taken by Mr.

Leask in order to obtain the hail-out number, that is before he actually commenced the fishing activity. [ 58 ] It appears from the evidence, as I indicated, that fishing activity was underway at the time that the Fisheries Officers arrived on the scene. [ 59 ] So with respect to that aspect of the charges, it is stated by Crown in their submissions that the elements of the offence under Count 1 have clearly been made out. [ 60 ] With respect to Count 2, it is Crown's submission that the offences relating to Count 2 are made out, under the conditions that I have referred to above, starting at paragraph 5(8) where it says that "The revival tank shall:" and then with specific reference to: e. be in operation at all times while the seine net is in the water, from the initial setting to the final retrieval back on board, and while fish are being held in the tank; f. at all times while in operation, be full of water that is continually exchanged with water drawn directly from overboard, at a rate of 90-110 litres (20-24 Imp gal) per minute; g. be kept clean and in operable condition; and h. shall not be used for any purpose other than that outlined above. [ 61 ] Specifically, Crown says that at the time in question, that the revival tank was functioning not as a revival tank, but as a water cooler for storing of the ice and water bottles. [ 62 ] In support of the defence's position, counsel has referred me to our Court of Appeal decision in R. v.

Emil K. Fishing Corporation, 2008 BCCA 490 . That is a case where a fishing corporation was charged with an offence of unacceptable limits of bycatch. At the trial, the corporate defendant raised the defence of due diligence under s. 78.6 (

a) of the Fisheries Act . [ 63 ] The sole director, officer, and shareholder of the defendant company, a Mr. Walter Kukuljan, testified as to the vessel's appropriate gear for segregating and releasing bycatch, including a brailer and a sorting box and a revival tank. The evidence of that witness for the Emil K. Fishing Corporation also was to the effect that he had hired a very experienced skipper who was very familiar with the requirements for operation.

The evidence in that case was that there had been no problems with the performance of that particular skipper, in terms of compliance with the Fisheries Act . [ 64 ] The director, officer, and shareholder of the defendant company testified that he had no reason to believe that the skipper would not comply. [ 65 ] In the decision of our Court of Appeal, Mr. Justice Groberman noted in paragraphs 22 and 23 as follows: [22] In the case at bar, the "particular event" at issue was the retention of prohibited species of salmon. The accused was not required to demonstrate the mechanism by which that event occurred.

It did need to show that it had, in all respects, exercised due diligence to prevent its occurrence. [23] The accused proved, to the satisfaction of the trial judge, that it equipped the Emil K with appropriate equipment to allow the crew to segregate fish and return them to the sea. The trial judge was also satisfied that the company took all reasonable steps to hire a competent crew and to instruct the crew to take due care to avoid an infraction. The trial judge considered that having exercised due diligence in these matters, the accused had made out its defence.

The appeal judge found no error in these findings. In reviewing the decisions of the courts below, the Court of Appeal stated at paragraph 27 as follows, as part of their analysis: [27] In any event, the question of whether or not a particular system amounts to "reasonable precautions" to avoid prohibited conduct is a mixed question of fact and law. The trial judge analysed the system in place in this case; she found it adequate to guard against the risk of bycatch. The appeal judge found no factual error in the analysis. It is not open to this Court to interfere with that finding.

In completing their analysis, the Court of Appeal at paragraph 19 made the following observations: [19] In my view, the Crown misinterprets what the case law means when it speaks of "specific events" giving rise to a prohibited act. None of the cases suggests that the defendant has the onus of demonstrating the precise mechanism by which a prohibited act occurred.

Rather, they stand for the proposition that the defence of due diligence will only be available if the accused can demonstrate that it has exercised due diligence to avoid the specific type of occurrence giving rise to the charges against it. [ 66 ] As a general response to the defence of due diligence, it is the Crown's position that the Emil K. Fishing decision is distinguishable on the fact that it was a charge against a corporation rather than a charge against an individual. I find that not to be a useful distinction. In fact, the provision which the defendant corporation was relying upon under s. 78.6 (

a) of the Fisheries Act says "no person", and is thereby not confined to a corporate entity. [ 67 ] I understand what Crown was also relying upon was the fact that the defendant corporation was not present on the boat at the

time in question that the particular event occurred. Of course, a corporation is represented through persons other than corporate entities, namely people like the officers, shareholders, et cetera. [ 68 ] As I understand it, Crown's contention in this case is that Mr.

Leask was aboard the boat and accordingly I should put upon him a higher standard of due diligence than that of a person who is an officer or other representative of a corporation, where they or the corporation itself was not actually present at the time that the alleged offences were taking place. [ 69 ] Having reviewed all of the evidence, and having reviewed the submissions made by counsel, with respect to Count 1, I am satisfied that the offence as alleged has been proven beyond a reasonable doubt by Crown.

With respect to the failure to have the hail-out number and to have it properly recorded: there is no doubt that this did occur. Having regard to the extenuating circumstances of that particular offence, Mr. Leask did have other options available to him. In fact, he could have done what he now does procedurally, and that is to obtain his hail-out number well in advance of arriving at a fishing ground.

However, in this particular set of circumstances, he did commence fishing prior to having a hail-out number made available to him. [ 70 ] I accept that is not consistent with his normal and prevailing practice, but in this set of circumstances, I do find him guilty on Count Number 1 and reject his defence. [ 71 ] However, with respect to Count Number 2, I do accept that the evidence before me does provide Mr. Leask with a defence. That defence is the defence of due diligence, which is contemplated by s. 78.6 (

a) of the Fisheries Act . He took reasonable steps in terms of instructing a valued and experienced member of his crew to make sure that the revival tank was in operation as required by the terms of the licence. [ 72 ] A fishing boat is ru n by a team, especially with vessels of this size. Reliance has got to be placed on members of the team to do the jobs to which they are assigned.

The situation is such that the skipper may be the person who is ultimately responsible, but it may be, in certain circumstances, unrealistic to expect that the skipper will be double checking every order that is given to ensure compliance. [ 73 ] In these circumstances, I am of the view that Mr. Leask took reasonable precautions in order to avoid a failure to abide by the requirement to have a functioning and operating revival tank. Accordingly, I acquit him on Count Number 2 of the Information. [ 74 ] That concludes my reasons for judgment. (REASONS CONCLUDED)