R. v. Bennett and Gurr Date:, 2015 BCPC 377

Citation: R. v. Bennett and Gurr Date: 20151203 2015 BCPC 0377 File No: 40511-2-C Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ALLAN BENNETT ROBERT EDWARD GURR FRANCIS KENNETH McCANN REASONS FOR JUDGMENT RE: ACCUSED BENNETT AND GURR OF THE HONOURABLE JUDGE J.P. MacCARTHY Crown Counsel: C. Gibson Appearing on his own behalf, by videoconference: David Bennett

Appearing on his own behalf, by videoconference: Robert Gurr Place of Hearing: Nanaimo , B.C. Dates of Hearings: January 27 and 28, 2014; November 24 and 25, 2014; May 21, 2015; August 31 and September 1, 2015 Date of Judgment: December 3, 2015 Introduction [ 1 ] THE COURT (orally): The three accused, David Allan Bennett, Robert Edward Gurr and Francis Kenneth McCann, have been charged on a six-count Information sworn July 3rd, 2013, which alleges six offences contrary to s. 78(

a) of the Fisheries Act ,

chapter 14 of the Revised Statutes of Canada, 1985, as amended (the " Act "). Crown has proceeded summarily. [ 2 ] During the charge period on May 2nd, 2012, and on May 25th, 2012, Mr. Bennett, who at the time was 42 years of age, was serving as master of the 10.6 metre (or approximately 36 feet) in length, commercial prawn fishing vessel named Zomby Woof .

It was owned by another individual, who was not present at the time of the alleged offences and has not been charged. [ 3 ] The Zomby Woof was licenced for fishing prawns with a quota of 300 traps under a commercial prawn and shrimp by trap licence (the "Licence") issued under authority of the Act and the Aboriginal Communal Fishing Licences Regulation . The Licence was held by the Laxkw'Alaams First Nation, whose traditional territory is on the northwest coast of British Columbia near Prince Rupert, centred around what was formerly called Port Simpson. [ 4 ] Mr.

Bennett was a very experienced fisher and a vessel master, who assisted family members who were engaged in commercial fishing starting when he was age 6 years. He started running vessels from age 16. He has been commercial prawning for the last 15 years. [ 5 ] Mr. McCann and Mr. Gurr were experienced fishers. Mr. Gurr apparently was less experienced than Mr. McCann. Both deckhands worked on the Zomby Woof during both charge periods. [ 6 ] Mr. Bennett frequently operates Zomby Woof for the owner under a financial arrangement which sees the division of net revenue from the catch between Mr.

Bennett, as the vessel master on one hand and the owner on the other. I understand that the deck hands and the owner have a separate financial arrangement for sharing of net revenue. [ 7 ] The first four counts, namely Counts 1 to 4, on the Information, name David Allan Bennett as the accused. These four charges relate to various alleged offences under the Pacific Fishery Regulations and under the British Columbia Sport Fishing Regulations .

All relate to eight prawn traps which were allegedly set on May 2nd, 2012, some time prior to an official opening for prawns in the Alberni Inlet near Port Alberni, British Columbia. [ 8 ] Count 1 alleges that Mr. Bennett: ... on or about the 2nd day of May, 2012, on the Canadian Fisheries Waters of Alberni Inlet, near the City of Port Alberni, in the Province of British Columbia, did unlawfully fish without the authority of a commercial licence, contrary to Section 26(1) of the Pacific Fishery Regulations 1993, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . [ 9 ] Count 2 alleges that Mr. Bennett: ... on or about the 2nd day of May, 2012, on the Canadian Fisheries Waters of Alberni Inlet, near the City of Port Alberni, in the Province of British Columbia, did unlawfully fish without the authority of a tidal waters sport fishing licence, contrary to

Section 18(

a) of the British Columbia Sport Fishing Regulations , 1996, as amended, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . [ 10 ] Count 3 alleges that Mr. Bennett: ... on or about the 2nd day of May, 2012, on the Canadian Fisheries Waters of Alberni Inlet, near the City of Port Alberni, in the Province of British Columbia, did set prawn fishing gear and fail to properly mark said gear with the operator's name, contrary to Subsection 27(1)(

b) of the Fishery (General) Regulations , 1993 and/or Section 40(2) of the British Columbia Sport Fishing Regulations , 1996 as amended, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act. [ 11 ] Count 4 alleges that: ... on or about the 2nd day of May, 2012, on the Canadian Fisheries Waters of Alberni Inlet, near the City of Port Alberni, in the Province of British Columbia, did set a string of eight prawn traps and failed to properly affix buoys on each end of the string, contrary to Subsection 27(6)(

b) of the Fishery (General) Regulations , 1993, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . [ 12 ] In addition, there are two further counts (namely Counts 5 and 6) which name David Allan Bennett and Robert Edward Gurr and Francis Kenneth McCann for offences alleged to have taken place in Clayoquot Sound near the Village of Tofino, which is on the west coast of Vancouver Island. [ 13 ] Count 5 relates to an allegation that, from on or about the 25th of May, 2012, that these three accused failed to comply with the

condition of a communal prawn and shrimp trap licence by engaging in what is commonly referred to as “double hauling” of traps. Thatcount specifically provides, in part that the three named accused: ... did unlawfully fail to comply with a condition of a communal prawn and shrimp by trap licence, to wit: haul gear more than one timein one day, contrary to

Section 7 of the Aboriginal Communal Fishing Licence Regulations, 1993, and did thereby commit an offencecontrary to

Section 78(

a) of the Fisheries Act. [14] Count 6 deals with an allegation that, from on or about May 25th, 2012, that these three accused did unlawfully possessundersized prawns. Specifically, the count provides, in part, that the named accused: ... on or about the 25th day of May, 2012, on the Canadian Fisheries Waters of Clayoquot Sound, near the Village of Tofino, in theProvince of British Columbia, did unlawfully possess fish, to wit prawns, that had been taken contrary to the Act or regulations, beingprawns that measured less than 33 millimetres when measured from the posterior margin of the eye orbit to the posterior mid-dorsalmargin of the carapace contrary to

Section 7 of the Aboriginal Communal Fishing Licence Regulations, 1993, and did thereby commit anoffence contrary to

Section 78(

a) of the Fisheries Act. [15] This matter was originally set for trial to commence on January 27, 2014. Mr. Bennett and Mr. McCann were represented bythe same legal counsel. Mr. Gurr was self-represented. [16] Owing to a suggestion that Mr. Gurr, who holds First Nations status, was raising an aboriginal rights issue under s. 35(1) of theConstitution Act, the matter was put over to January 28th, 2014, in order to determine how to proceed. On January 28th, 2014, Mr.

Gurrstated that he did not intend to assert that right or to make that argument. [17] Again, due to lack of court time, the matter was referred to the judicial case manager for a continuation that was scheduled tostart on November 20th, 2014. On that date, due to the absence of the three accused, who were thought by legal counsel to be outfishing, the matter was adjourned over to when the three accused were to be present in order to commence the introduction of evidence. [18] The matter did commence on November 24th, 2014, and continued on November 25th, 2014.

Two days for a continuation wereset, starting on May 21st, 2015. All three failed to attend court on May 21st, 2015. Unendorsed bench warrants were issued for all threeaccused. [19] Counsel sought to withdraw from the record, but that application was put over until the three accused were back before thecourt. The trial continued on August 31st, 2015, and September 1st, 2015, with Messrs. Bennett and Gurr present. On August 31st,2015, the court was told that Mr.

McCann had, in the meantime, waived his charge to Prince Rupert for an intended guilty plea. [20] Legal counsel was permitted to withdraw on August 31st, 2015. The trial continued on August 31st, 2015, and on September1st, 2015, with the two remaining accused being self-represented. [21] The matter is before the court today for a decision, with the two remaining accused, Messrs. Bennett and Gurr, attending byvideo link from Prince Rupert. [22] Crown called a total of six experienced and long-serving Fisheries officers to testify. Only Mr. Bennett testified on his ownbehalf. Mr.

Gurr did not testify, as is his right. No adverse inference is to be drawn from Mr. Gurr not testifying. Presumption of Innocence and Reasonable Doubt [23] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can a court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused must beacquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [24] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard.

The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. (See R. v. Lifchus, (S.C.C.), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 , [2000] 2S.C.R. 144.) The W.(D.) Formulation [25] I must instruct myself that in the trial of criminal matters or quasi-criminal matters, it is not a question of which witness'sevidence or version of the events I believe, but rather on the totality of the evidence.

Crown has to prove each essential element of eachoffence beyond a reasonable doubt. [26] Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself, andI must apply to this evidence the well-known process of analysis set out in R. v. W.(D.), (S.C.C.), [1991] 1 S.C.R. 742,found at paragraph 28. First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit.

Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [27] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v. J.M.H., 2012 PECA 6, [2012]

PEIJ No. 10, at paragraphs 30 to 31: 30. Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of anaccused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence taken as awhole raises a reasonable doubt. ...

Proper application of the third step involves moving the focus from the evidence of the accused tothe Crown's evidence and assessing it in its own right (in relation to all the evidence) on the criteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringing evidence that can prove guilt beyond a reasonabledoubt. ... The Supreme Court of Canada recently stated in R. v.

J.H.S., 2008 SCC 30, at para. 8, that a series of decisions has affirmed andreaffirmed that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment ofcredibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. 31. The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt.

It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt. [28] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., (BC CA), [1991]B.C.J. No. 2753, adds a fourth step to the W.(D.) analysis, namely, if after consideration of all the evidence the court is unable to decidewhom to believe with respect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A. (as he thenwas) suggests that logically this ought to be second in order in the W.(D.) analysis. [29] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times, orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) [30] In this case, I have heard evidence that is conflicting on material matters, and particularly in connection with Count 5. Therefore, I must assess the credibility of the witnesses who provided this conflicting evidence.

In doing so, I must weigh all of theevidence and so in weighing the evidence, I may reject or accept some or all of the witnesses' testimony after having taken into account amultitude of factors which include but are not limited to appearance or demeanour, ability to perceive, ability to recall, motivation,probability or plausibility and internal or external consistency. [31] I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [32] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, 2010 A.J. No. 1094.) Assessing Credibility and Reliability of Witnesses [33] As noted just above, I have heard evidence that is conflicting on material matters, especially with respect to Count 5. ThereforeI must assess the credibility and reliability of those witnesses who have provided this conflicting evidence. In doing so, the testimony ofeach of the witnesses can be considered from three perspectives: (

a) their truthfulness, whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity, whether they have been influenced by assumptions or emotions which may reflect the accuracy of theirperceptions; and (

c) the accuracy of their observations, their abilities to observe, remember and communicate accurately. [34] In the recent case of R. v. Cuhna, 2015 BCPC 60, at paragraphs 5 and 6, the Honourable Judge Merrick provides a usefulreview of the factors to be considered when assessing testimony of a witness from these three perspectives. Statutory Provisions for Offences and Defence of Due Diligence under the Fisheries Act [35] Under the heading of "Offence and Punishment", the following sections of the Fisheries Act are applicable to this case: Punishment not otherwise provided for 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 dollarsand, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding oneyear, 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 subsequentoffence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. Offences by employers 78.3 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by anemployee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless theaccused establishes that the offence was committed without the knowledge or consent of the accused. 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. [36] The offences under the Fisheries Act are strict liability offences. The charge is made out simply by proving the actus reus,which is then subject only to the limited statutory defences provided in the Act. It is not necessary for Crown to prove the mentalelement or intent to commit the offence. [37] Our Court of Appeal in R. v. F.A.S. Seafood Producers Ltd. noted the following about the due diligence defence. Commencingat paragraph 24, the court said as follows: 24.

The clause "unless the accused establishes that the offence was committed without the knowledge or consent of the accused"imports the reasonable care or "due diligence" defence to the liability of a principal for its agent. 25. It is helpful to refer to R. v. Cameron (1996), (NS SC), 149 N.S.R. (2d) 196 (S.C.), leave to appeal dismissed[1996] N.S.J. No. 109 (C.A.), in which the application of s. 78.3 of the Act was considered in an appeal from conviction for landingundersized lobsters. In that case, the accused fished for lobsters with a helper.

He delegated to his helper responsibility for measuringthe size of the lobsters caught. The accused said he had no knowledge, and there was no reason for him to have knowledge, that any ofthe lobster were undersized. One of the issues was whether the trial judge erred in finding that Cameron had not established the defenceof due diligence. On that issue, Tidman J. said, in part, at paras. 10-12: [10] Here the court found that the lobsters landed from the boat of the accused were smaller than legally permissible. That finding is notin dispute.

The accused is entitled to an acquittal, however, if he can establish on a balance of probabilities that the offence wascommitted without his knowledge or consent. This provision incorporates what is known as the reasonable care or "due diligence"defence. [11] That defence was considered by the Supreme Court of Canada in the seminal case of R. v. City of Sault Ste. Marie (1978) (SCC), 85 D.L.R. (3d) 161. The court describes what are known as strict liability offences and the defences available againstthem.

At p. 81 the court defines strict liability offences and states what must be shown to successfully defend such a charge. Offences in which there is no necessity for the prosecution to prove the existences of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. [12] The defence, commonly described as the "due diligence" defence, has been incorporated into the Fisheries Act.

Section 78.6 of theAct provides: ... The Applicable Statutory Requirements with respect to Counts 1 to 4 inclusive [38] On Count 1, s. 26(1) of the Pacific Fishery Regulations, provides that: Subject to subsection (2), no person shall fish except under the authority of a licence issued under these Regulations, the Fishery(General) Regulations or the Aboriginal Communal Fishing Licences Regulations. [39] On Count 2, s. 18(

a) of the British Columbia Sport Fishing Regulations provides that: No person shall (

a) fish unless the person holds a licence; [40] On Count 3, s. 27(1)(

b) of the Fishery (General) Regulations provides that, subject to s. 28, no person shall: ... set, operate or leave unattended in the water any fishing gear other than mobile gear or handlines unless the gear is marked inaccordance with subsections (2) to (6) with ... (

b) in any other case, the name of the person who owns the gear. [41] And further, s. 40(2) of the British Columbia Sport Fishing Regulations provides that: No person shall fish for shrimp with a shrimp trap unless a tag, float or buoy that bears the operator’s name is attached to one end of theground-line. [42] On Count 4, s. 27(6)(

b) of the Fishery (General) Regulations provides that: A tag, float or buoy referred to in subsection (2) shall: ... (

b) in any other case, be affixed to each end of the gear.

Summary of the Evidence with respect to Counts 1 to 4 Crown's Evidentiary Case

[ 43 ] As noted above, Crown called a total of six experienced and long-serving Fisheries officers to testify. According to the testimony of the Fisheries officers called by the Crown, Fisheries Officers Poole and Tompkins were in a marked Fisheries vessel, the Discovery Point , on May 2nd, 2012, in Area 23 of the Alberni Inlet and Barkley Sounds. They were completing compliance checks when they came across an orange float with what appeared to be prawn lines attached to it. They were in the location between Cook Point and Waking Point on the west side of Alberni Inlet.

On May 2nd, the area was closed for commercial prawning. [ 44 ] The float contained the letters "PRN" and the vessel name, Zomby Woof , known to the Fisheries officers to be a commercial fishing vessel which had followed the necessary "hail in" procedure and thereby provided the required notification that it was intending on commercial prawn fishing in Area 23 once the commercial prawning opening had occurred.

That was set for noon on May 2nd being noon on the following day. [ 45 ] Since the area was still closed to commercial prawning, the lines attached to the orange float were pulled up by the Fisheries officers. The Fisheries officers discovered eight prawn traps set and baited. A total of 410 prawns were found in the traps. The prawns were counted and then returned to the ocean.

The gear was seized. [ 46 ] The fact that the area was still closed for commercial prawning gave rise to the charge in Count 1 of the Information since fishing was taking place without the authority of a commercial licence. [ 47 ] The Fisheries officers noted that only one buoy was attached to the eight traps which, as is alleged in Count 4; that was contrary to the requirement to affix buoys at each end of the string. [ 48 ] According to the evidence of Fisheries Officer Poole, under the licencing requirements for sport fishing and recreational prawning, only two traps are allowed on one line and a maximum of four traps may be utilized, provided that two buoys are used and the line is strung between the two buoys. [ 49 ] Sport and recreational fishing requires specific identification of the operator's name to be properly marked on the gear when fishing is taking place pursuant to the Tidal Water Sport Fishing Licence.

This gear was not properly marked, as is alleged in Count 3. [ 50 ] Since there was no operator's name on the gear, the Fisheries officers suspected that whoever had placed the gear was fishing without the authority of a Tidal Water Sport Fishing Licence as is alleged in Count 2. This suspicion also flowed from the fact that the name of the commercial vessel Zomby Woof appeared on the float. [ 51 ] On May 3rd, 2012, after the commercial opening had occurred, Fisheries Officers Poole and Tompkins were on patrol aboard the Discovery Point .

They spotted the Zomby Woof , intercepted it, and requested permission from Mr. Bennett to board. That permission was granted. [ 52 ] Discussions took place between Fisheries Officer Poole and Mr. Bennett. A routine and authorized inspection of the Zomby Woof occurred pursuant to s. 49 of the Act . All three named accused held personal fishing licences required to participate in the commercial fisheries. Those personal fishing licences were in good order. The Zomby Woof commercial fishing licence was found also to be in good order, and the Zomby Woof commercial prawn logging book was also in good order.

Fisheries Officer Poole sought and was granted permission to inspect the prawn traps stored on the deck of the Zomby Woof . [ 53 ] A further purpose of intercepting the Zomby Woof was to follow up on the investigations arising from the discovery of the eight prawn traps on May 2nd, 2012, to determine their ownership and to determine whether or not somebody else was utilizing the name of Zomby Woof to conduct illegal fishing observed on May 2nd, 2012. [ 54 ] Those discussions took place after Mr. Bennett was chartered and warned. His statements were held to be voluntary statements after a voir dire .

In those discussions, Mr. Bennett confirmed he was the vessel master, that they had set eight traps that previous day, and those eight traps belonged to the Zomby Woof , that neither he nor any crew member had a recreational fishing licence in order to fish on May 2nd, 2012. [ 55 ] Mr. Bennett suggested that he was of the understanding that because Mr. Gurr was a First Nations individual, that it was open for him to fish anywhere, any time. According to the statements made by Mr. Gurr to the Fisheries Officer, he confirmed his aboriginal status, and the suggestions made by Mr.

Bennett to Fisheries Officer Poole. [ 56 ] Mr. Gurr further confirmed that he had placed the wrong buoy on the traps the previous day. By that, I understand that he had used the Zomby Woof buoy rather than a recreational buoy with proper identification. [ 57 ] Following those discussions, appearance notices were issued by the Fisheries officers, with respect to Counts 1 to 4, and the Zomby Woof departed to start commercial prawning. The Defence's Evidentiary Case [ 58 ] Mr. Bennett testified on his own behalf.

His evidence did not materially contradict the Crown's evidence as it related to the charges on Counts 1 to 4. [ 59 ] Mr. Bennett testified that the Zomby Woof had left Prince Rupert approximately one week prior to the May 3rd, 2012, opening and travelled to Port Alberni, arriving a couple of days prior to the commercial opening for prawns. He confirmed that he was the master of the vessel and responsible for its operation and for its fishing activities. He confirmed that he did not have a sport fishing or recreational licence to prawn, and was not aware whether or not either Mr. Gurr or Mr.

McCann had one. [ 60 ] Mr. Bennett contended the eight traps were recreational traps, not commercial traps. Recreational traps have a smaller net size. Mr. Bennett admitted that he was aware that only four recreational traps could be placed on one line, but had not made inquiries about how the buoy or buoys were to be marked with proper identification of the owner.

[61] He believed that either or both of the two other accused, namely Mr. Gurr and Mr. McCann, had set the recreational traps withhis knowledge. He admitted that he was aware that the name Zomby Woof appeared on the buoy. He further confirmed that it was hisintention, and that of the other two accused, to catch and share some of the prawns for personal consumption. He confirmed that he didnot make inquiries about sport or recreational fishing licences or the requirements for an aboriginal fisher to be able to fish at any time oranywhere as suggested by Mr. Gurr.

Crown's Position with respect to Counts 1 to 4 inclusive [62] Crown says that it has met its burden of proof and has proven the material elements of each of the offences on Counts 1 to 4 andthat, based on the admissions of Mr. Bennett as to his actions taken, or lack of actions, or lack of inquiry relating to the subject matter ofthese offences, that no due diligence defence is sustainable for Mr. Bennett on all of the evidence. [63] Crown fairly says that the rule in R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729, against multiple convictions,has application with respect to the first four counts and may prohibit the registration of multiple convictions on the related offencesarising from the same delict or factual situation. Accordingly, the Kienapple rule should be considered and applied. [64] Therefore Crown says that Counts 1 and 2 are actually alternatives of the same offence.

The evidence supports a conviction onCount 2 and a conditional stay on Count 1. [65] With respect to Counts 3 and 4, Crown says these are actually offences arising out of the same manner of fishing, namely theimproper marking of gear and the failure to have the operator's name on the buoy. Accordingly, Crown suggests that a conditional stayshould be entered either on Count 3 or Count 4. Defence's Position with respect to Counts 1 to 4 inclusive. [66] Notwithstanding that he did not provide any evidence, in submissions Mr. Gurr did state that it was his "bonehead" idea to setthe traps.

He was remorseful for the trouble that this has caused Mr. Bennett. [67] Limited submissions were presented by Mr. Bennett about the charges on Counts 1 to 4. Analysis and Decision with respect to Counts 1 to 4 [68] I agree with Crown that they have proven the offences under Counts 1 to 4 inclusive beyond a reasonable doubt. I also agreethat there was insufficient due diligence on the part of Mr. Bennett to amount to a defence under s. 78.6 of the Act. [69] I also agree with Crown's submissions with respect to the application of the Kienapple principle to these four offences.

Conclusions [70] Accordingly, conditional stays will be entered on Counts 1 and 4 and convictions entered with respect to Counts 2 and 3 againstMr. Bennett. The Applicable Statutory Requirements and Licencing Requirements with respect toCount 5 (the Double Hauling Offence) [71] Section 22(7) of the Fishery (General) Regulations provides as follows: No person carrying out any activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. [72] The following provisions under the licence which permitted Zomby Woof to engage in the commercial prawn fishery arerelevant.

Under

part 1,

definitions, it provides as follows [as read in]: "Prawn and shrimp trap gear" means traps and attached lines and buoys, it does not include holding cages which are set on buoys andlines separate from traps. "Single haul" means hauling trap gear to the surface of the water only once per day. [73] Under

part 1, s. 12(2), of the licence, under the heading "manner in which gear is permitted to be used" provides as follows: Hauling of prawn and shrimp trap gear, including lines, buoys and holding cages attached to traps, is permitted only once per day. Thisis referred to as a single haul.

Summary of the Evidence with respect to Count 5 (Double Hauling) Crown's Evidentiary Case with respect to Count 5 [74] On May 24th, 2012, on the day predating the charge period for Count 5, Fisheries Officers Tompkins and King, in a ZodiacFisheries patrol vessel, were completing compliance checks in Clayoquot Sound during the period of time that the commercial prawnfishery was open. [75] They observed five strings of traps belonging to and identified with the name and five-digit vessel registration number for theZomby Woof. Five strings were located in an area identified as Fortune Channel at the entrance to Warren Bay. A further string was

located and observed at Bedwell Sound at the north end of Clayoquot Sound. The location of each of the strings was recorded and plotted by the Fisheries officers. [ 76 ] Around 3:00 p.m. on that day, they observed the Zomby Woof , came alongside and boarded the vessel to conduct an inspection pursuant to s. 49 of the Act . This included the inspection of licences and log books, and inspection of any catch on board the vessel. [ 77 ] In the course of that inspection, a general conversation took place between the Fisheries officers and Mr. Bennett.

That discussion included the topic of "double hauling" and the need for conservation of prawn stocks. [ 78 ] Fisheries Officer King testified that on May 24th, 2012, at around 4:00 p.m., they believe that they had observed a string of gear near Warren Bay, belonging to the Zomby Woof . They believe that that set of gear had been subject to a double hauling on that particular day. [ 79 ] As a result of this observation, plans were made by the Fisheries officers to conduct a more thorough investigation and to attempt to observe the Zomby Woof participating in a double haul offence.

Therefore, on May 25th, 2012, Fisheries Officers Jackson and Aus left early from Tofino in an unmarked Fisheries patrol vessel, wearing camouflage clothing. Their destination was a small unnamed island which would permit them to observe prawn fishing gear belonging to the Zomby Woof set near the entrance to Warren Bay. [ 80 ] Fisheries Officer Aus was equipped with a spotting scope and a zoom lens camera. She assumed the observation position on the island (the "Observation Point").

Fisheries Officer Jackson remained with the Fisheries vessel and had in his possession a pair of binoculars to conduct his observations. [ 81 ] At various times, Fisheries Officer Jackson was not able to maintain a constant observation of the Zomby Woof because of his location behind the island, and the change of location of the Zomby Woof as it moved between the strings, and due to the swing of the vessel when it was stopped and was pulling up and resetting gear.

He and Fisheries Officer Aus remained in radio contact. [ 82 ] Fisheries Officer Aus was in a better vantage point on the island at the Observation Point. It was on a rocky shore in a depression surrounded by salal. She wished to remain hidden to avoid detection from the Zomby Woof . She was some distance away from the location of each of the strings of the Zomby Woof , thereby requiring the use of the spotting scope to complete her observations. [ 83 ] She attempted to count the number of traps being hauled up on each string.

In some places, she was only able to estimate the number, given the frequent relocation and the swinging of the vessel and the distance from which she was observing the vessel and its activities. [ 84 ] She observed the Zomby Woof , with three persons aboard, deal with five strings of traps between approximately 7:00 a.m. and 12:40 p.m., hauling up the traps, unloading the catch, sorting the catch, rebaiting the traps and resetting the lines, in generally the same location from which they had been hauled.

She did not observe any difficulty in the operations of the Zomby Woof , but it did appear to have engine problems with one of its two engines. She did not observe any entanglements during the process of hauling the lines. [ 85 ] She observed another commercial prawn fishing boat, the Lily Bob , working in the vicinity of the Zomby Woof . There were brief periods of about a half a minute or less when her view of the Zomby Woof operations was obstructed. I understand this occurred during the hauling of string number 2.

She testified that during the hauling of string number 2 she was able to observe approximately 30 traps hooked on the line being hauled up and reset. [ 86 ] The Zomby Woof then departed around 12:40 p.m., apparently heading to its string of traps located in Bedwell Sound. Following the departure of the Zomby Woof , she marked the location of the Zomby Woof strings by taking GPS readings on four of the five buoys, always mindful of avoiding detection. [ 87 ] At around 4:10 p.m., she observed the Zomby Woof return towards the Observation Point. It proceeded to what was identified as string number 2.

Its crew proceeded to haul that line up. Earlier, Fisheries Officer Aus had observed string number 2 being hauled around 8:50 a.m. and being reset shortly after 9:20 a.m. [ 88 ] During the second hauling of string number 2, she lost visual contact with Zomby Woof for approximately ten minutes as the vessel was swinging. She estimated she observed about 20 traps being pulled, emptied, sorted, rebaited and then the string reset in the same location. That was completed between 4:10 and 4:42 p.m.

The Zomby Woof then departed towards Tofino. [ 89 ] Thereafter, Fisheries Officers Aus and Jackson went to string number 2 and marked it with a blue buoy and took a GPS reading. Information was then radioed to Fisheries Officer Tompkins and Fisheries Officer King. Fisheries Officers Aus and Jackson then proceeded in their Fisheries boat to Tofino to meet up with the other Fisheries officers in order to intercept the Zomby Woof when it was offloading its catch, contained in totes, by crane, while wharf-side in Tofino. [ 90 ] At around 6:20 p.m., Fisheries Officer Aus met with Mr.

Bennett, chartered and warned him, and explained the Fisheries Act violation that he was being investigated for and upon which he was being detained. Other Fisheries officers dealt with Mr. Gurr and Mr. McCann in a similar fashion. [ 91 ] The perishable catch was seized by the Fisheries officers but allowed to be offloaded and taken by truck to the processing plant at French Creek on the east side of Vancouver Island. [ 92 ] At the direction of Fisheries Officer Aus, Fisheries Officers Tompkins and King travelled to the location of string number 2 in order to seize it. They arrived around 8:20 p.m.

They attempted to haul the line, but their light-duty winch on their Fisheries vessel was only able to haul up ten traps before it failed due to what they believed was the weight of the traps. They removed the orange buoy and seized it and the traps that had been pulled; they then tied the line to the shore intending to return the next day to seize the balance of the traps and equipment.

[ 93 ] Fisheries Officer Tompkins conceded that the string could have been stuck, and further conceded that he could not see what was under the water and hence he could not actually see the directional location of the submerged traps and lines. He further conceded that it was difficult to tell which lines may be attached to which buoys, especially if a string was laid in a zigzag pattern. [ 94 ] Fisheries Officer Tompkins confirmed that there was a fish farm in the vicinity of string number 2 and also conceded that there were likely anchor lines under the water securing that fish farm.

He also did not recall seeing other gear or buoys in the immediate vicinity of string number 2. [ 95 ] The next day, when the Fisheries officers returned, the line that had been tied off on the beach was not visible, nor was it or any gear recovered. Defence's Evidentiary Case with respect to Count 5 [ 96 ] Mr. Bennett testified that at no time did the Zomby Woof double haul any of its strings on May 25th, 2012. Mr. Bennett says that string number 2 was intentionally set by the Zomby Woof between the anchors of the fish farm and that it was set in a zigzag pattern.

That area was an excellent prawning area due to its proximity to the fish farm. The prawns are apparently attracted to the food source used to feed the farmed salmon stock. He testified that the location of string number 2 was 35 metres off of the fish farm, and said that it was set in such a fashion as to lay across the entire westerly water side of the fish farm. [ 97 ] He testified that the Zomby Woof string number 3 was also set in a loop around string number 2 in the same vicinity near, but about a hundred metres off the fish farm, laying in a southerly direction from string number 2 and from the fish farm.

The distance between these two strings was 30 metres or closer. [ 98 ] The Zomby Woof string number 4 was set off about 150 metres from the fish farm, and westerly of strings 2 and 3. Again, it was laid in such a fashion as to cover the area west of those strings and the fish farm. [ 99 ] Mr. Bennett said he chose these areas due to the excellent prawn catches, notwithstanding that there was a risk of his gear getting caught up and snagging on the fish farm anchor lines that extended out some distance.

I also understand that the close proximity of these strings was intended to prevent competitors from placing their strings in the coveted area. Maintaining the location of each string attached to the surface buoys also kept other vessels from infringing on this area near the fish farm. [ 100 ] In his evidence, Mr. Bennett took issue with a number of the locations of the strings that were identified in the testimony of the Fisheries officers, and in particular with respect to strings number 2, 3 and 4.

The proximity of the method of laying these strings and their proximity to each other, in his view, may have caused difficulty to other people in determining which surface buoys were connected to which string. [ 101 ] Mr. Bennett also testified that his method of setting the strings either in a wriggling or zigzag fashion rather than in a straight line was not in keeping with the usual method. [ 102 ] According to Mr. Bennett, each string contained the maximum allowable of 50 traps or less. Six strings of 50 traps each would match the 300-trap quota of the Licence. [ 103 ] On May 25th, 2012, Mr.

Bennett says that the hauling of string number 2 was the second string to be hauled that day. They started hauling from the north end of the line and had hauled approximately half of the traps when they became snagged and the Zomby Woof commercially-rated hydraulic hauler ceased to function because the ground line was caught up in the anchors to the fish farm. [ 104 ] The Zomby Woof tried to circle around in order to free the ground line. That proved unsuccessful. Accordingly, only about 25 of the traps were able to be retrieved and emptied and approximately 25 were not retrieved and emptied.

The retrieved traps were not reset at that time, but rather were left at the stern of the vessel, but the line was then reattached to the buoy. [ 105 ] Mr. Bennett testified that because the tide was running, he did not have any more time than about five minutes to spend attempting to free string number 2 so therefore the Zomby Woof proceeded to haul, empty and reset strings 3, 4 and 5. Thereafter, Zomby Woof departed to haul the string located some distance away in Bedwell Sound.

The intention was to return back to string number 2 at the end of the day. [ 106 ] Having completed the haul in Bedwell Sound, the Zomby Woof returned to string number 2, arriving back at Warren Bay, by his estimates, between 3:00 and 4:00 p.m. The Zomby Woof 's hauling of string number 2 recommenced, this time from the south end. That proved successful and the snagged line was freed from the fish farm's anchor lines, aided by slacker tides and less drift of the vessel. [ 107 ] The remainder of the traps, or as Mr.

Bennett described it "whatever was left on the string", were hauled up and emptied, and then all the traps for that string, including the traps earlier retrieved, were rebaited and reset for the first time that day.

He says that none of the traps hauled earlier in the day were cleared of prawns a second time during this period of time late in the afternoon. [ 108 ] In the process of completing these procedures, Zomby Woof hauled up the entire string number 2 and reset the entire line in a wriggling fashion in the approximate location that it had previously been placed near the fish farm. [ 109 ] Zomby Woof then departed to Tofino to offload the catch, where it and the three accused were met by the Fisheries officers. [ 110 ] The catch was seized and matters proceeded in the fashion described in the testimony of the Fisheries officers.

Mr. Bennett was told that he would be charged for a double hauling offence. He recalls being told by Fisheries Officer Aus that his traps and lines for the string that had been double hauled would be seized and would likely not be there when he went back to its location. He was concerned, since the cost of each trap alone before buoys, anchors and lines was about $90 each. However, he was uncertain which string the Fisheries officers were contending had been double hauled.

[ 111 ] He testified that he did not offer an explanation or say anything about the alleged double hauling to the Fisheries officers, testifying that from his past dealings with Fisheries officials, he "knows not to speak to DFO" nor to make statements without speaking to a lawyer because they (DFO) "turned it around". [ 112 ] On May 26, 2012, all three accused arrived back at the entrance to Warren Bay on the Zomby Woof where their strings had been set the previous day.

Two buoys were missing, so it was presumed that one string had been seized by the Fisheries officers. [ 113 ] As a result of their attempts to retrieve their strings, Mr. Bennett and the other two accused discovered that it was the north buoy on string number 3 and the south buoy on string number 2 that were missing.

They hauled up string number 3 and retrieved all of the traps and anchors attached to that line, but not the missing buoy which, they knew, was in place when they had set the string the previous day. [ 114 ] When they located the north buoy for string number 2, they hauled it up and came to bare line but no traps and continued to haul it, and then discovered that the line continued to the beach area. Mr. McCann went onto the beach and untied the line. Mr.

Bennett's suggestion from this discovery was that the Fisheries officers were mistaken which buoys were attached to which lines, and actually which lines and gear formed strings number 2 and number 3. [ 115 ] Having recovered this gear, a trap count was conducted, and it was determined there were less than 100 traps, therefore some traps were missing. Replacement traps were added, and strings number 2 and 3 were reset. [ 116 ] Mr. Bennett was cross-examined about entries or lack of entries in his Fisheries "shrimp trap log" before May 25th, 2012.

He denied the suggestion made by Crown that the manner in which he had left blanks in the weight column in the log book permitted him to conceal the double hauling of the strings on that date. His explanation was that he could only guess at the weight of each catch, and that the estimates that he records never jibe completely with the actual weights determined at the processing plant.

He further testified that he did not leave times, dates and locations and other statistical information and the number of traps blank in the log. [ 117 ] On cross-examination, he was also asked about whether or not he was snagged the previous day on May 24th, 2012, while hauling up his strings. He indicated that he had no recollection of that occurring, but said that it was a common occurrence. Crown's Position with respect to Count 5 (Double Hauling) [ 118 ] Crown concedes that if I accept Mr.

Bennett's evidence with respect to the circumstances surrounding the hauling of string number 2 that it would amount to a defence and he would be entitled to an acquittal on the charge. [ 119 ] In the Crown’s submissions, they say that the evidence of Mr. Bennett is unbelievable and at odds with and is contradicted by the evidence of Fisheries Officers Aus and Jackson.

In particular, it is submitted that considerable weight should be given to the evidence of Fisheries Officer Aus because of the relatively unobstructed view she had from the Observation Point which permitted her to observe the double hauling and the resetting of the string by the Zomby Woof . [ 120 ] Crown submits that the W.(D.) formulation is applicable to this charge and to the contradicting evidence provided by Mr. Bennett. Position of Defence with respect to Count 5 (Double Hauling) [ 121 ] As I understand the submissions made by Mr. Bennett and adopted by Mr.

Gurr, the observations made by the Fisheries officers with respect to the alleged double hauling were made from a significant distance from the Zomby Woof 's hauling activities and that there were periods of time when the Fisheries officers, including Officer Aus, lost sight or did not have a clear view of what was taking place. The confusion of the Fisheries officers as to which buoys were attached to which lines and formed which strings weakens the reliance that can be placed on the observations made by the Fisheries officers. [ 122 ] Mr.

Gurr argues that the Fisheries officers had full opportunity to take photographs in order to support their case, but failed to do so. From that, I understand I am to take it that there is no corroborative evidence other than the viva voce evidence of the Fisheries Officers Aus and Jackson regarding the alleged double hauling incident. Analysis with respect to Count 5 [ 123 ] Under the W.(D.) formulation, I do not have to entirely believe Mr. Bennett in order for there to be an acquittal.

If I am left in a reasonable doubt by his evidence, then an acquittal must be entered. [ 124 ] The testimony of the Fisheries officers was given in a forthright manner. However, it was based on observations of what appeared to be taking place on the ocean from a significant distance away, with the Zomby Woof shifting and moving. There was activity taking place out of the direct view of Fisheries Officer Aus at certain periods of a varying duration. During these periods, Fisheries Officer Aus was unable to maintain visual contact with the Zomby Woof .

Hence, the reliability of the evidence of the Fisheries officers can be questioned with respect to whether or not what was being observed was the double hauling of a string or simply the return of the Zomby Woof to complete the unsnagging of string number 2 and to then reset it. [ 125 ] Notwithstanding that I was presented with a number of documents, including charts and diagrams upon which the various witnesses noted the location of the various strings, nothing was presented in document form in order to mark the actual GPS locations taken by the Fisheries officers with respect to each of the strings.

That weakens the Crown's case, especially in light of the evidence of Mr. Bennett, who was the master of the vessel and who had on numerous times laid down each of these strings and was present close to the site of each string on the day that the alleged offence occurred.

[ 126 ] Mr. Bennett's evidence as to the importance of the fishing site adjacent to the fish farm is also important. It increases the credibility and the reasonableness of his explanation of what was actually occurring. Snagging on the fish farm lines is a reasonable and believable explanation for what was actually occurring and which was taken by the Fisheries officers to be a case of double hauling. [ 127 ] On balance, I accept the explanation provided by Mr. Bennett of what was occurring when he was attempting to unsnag the lines connected to string number 2 and thereafter reset the line with all of the traps.

Therefore, I conclude that no double hauling occurred as alleged in Count 5. Conclusion with respect to Count 5 [ 128 ] Based on the foregoing, I acquit the defendants David Allan Bennett and Robert Edward Gurr with respect to the double hauling allegation contained in Count 5.

Applicable Statutory Requirements and Licencing Requirements with respect to Count 6 (Possession of Undersized Prawns) [ 129 ] Section 22(7) of the Fishery (General) Regulations provides that: No person carrying out any activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. [ 130 ] In

part 1, s. 2(1) of the conditions to the licence, it provides that [as read in]: The minimum legal sized limit for whole prawns is 33 millimetres carapace length measured from the most posterior part of the eye orbit to the posterior mid-dorsal margin of the carapace.

Summary of the Evidence with respect to Count 6 (Undersized Prawns) Crown's Evidentiary Case [ 131 ] Fisheries Officer Crottey testified that he received a call from Fisheries Officer Tompkins requesting him to monitor the offloading of the seized prawns taken from the Zomby Woof which were being delivered to the French Creek Seafood Plant at French Creek between Qualicum Beach and Parksville on the east side of Vancouver Island. [ 132 ] Fisheries Officer Crottey attended at the plant that same day and observed the arrival and offloading of the two totes containing the prawns.

He observed the plant workers sorting, grading and placing the prawns into one kilogram boxes which were then placed into the plant freezer.

Once the entire amount of the seized prawns had been dealt with by the plant workers in that fashion, he was presented by the plant supervisor with bags containing 4.94 pounds of undersized prawns taken from the Zomby Woof 's seized catch delivered to the plant. [ 133 ] Based on the documentation generated by the seafood processor, the total pounds of prawns received from the Zomby Woof at the plant was 738 pounds. [ 134 ] The prawns identified as being undersized were taken to the Fisheries office in Port Alberni. There they were photographed and measured with callipers and counted by Fisheries officers.

There were 102 prawns identified as being under the required size of 33 millimetres. Defence's Evidentiary Case on Count 6 (Undersized Prawns) [ 135 ] Mr. Bennett testified as to the procedures utilized to sort and size the prawns taken from each trap immediately after it had been hauled aboard the Zomby Woof . He stated that the processing plant would only pay for prawns that were of the required size.

In other words, there is no financial benefit to any of the accused to catch and retain undersized prawns and then send them to the processing plant. [ 136 ] He testified that the Zomby Woof has a sorting table upon which the catch from each trap is dumped from the hauled traps. He and Mr. McCann were responsible for the sorting. In the meantime, Mr. Gurr would be rebaiting the empty traps. [ 137 ] The Zomby Woof 's sorting table was equipped with two measuring scribes of 33 millimetres in length, being the required size of the prawns. These were utilized by Mr. Bennett and Mr.

McCann in order to measure the prawns if required. Any undersized prawns were immediately thrown overboard and thereby returned to the ocean. The prawns that were of the correct size were pushed through a hole in the sorting table into garbage can containers which were then emptied into large totes. [ 138 ] Although they had a set of callipers on the Zomby Woof , the scribe is utilized because it is more accurate and more efficient. Mr. Bennett specifically stated that, for example, anything in the range of 27 millimetres would not be measured but would be immediately thrown back. [ 139 ] Mr.

Bennett was candid when he said that on occasion, especially at the beginning of the season when the prawns are smaller, that they may receive a notice from the processing plant about adherence to the size requirements. However, he further noted that he has not experienced the processing plant sending him a notice about 4.59 pounds of undersized prawns in a total load of 738 pounds. [ 140 ] To explain how the undersized prawns may have been included in the shipped catch, Mr.

Bennett explained that since it is a live product, that the prawns can, and do on occasion, flip and then slip into the hole before the sorter has an opportunity to throw them back.

[ 141 ] He testified that the procedures utilized on the Zomby Woof to sort and prevent undersized prawns from being retained are the best of which he is aware. He suggested that there would be concerns about the quality of the sorting and the attention being paid to size if there were, say, 20 pounds of undersized prawns in a 300-pound load. [ 142 ] In

summary, he says that there was no intention or incentive on the part of Mr. McCann and himself to retain any undersized prawns. The goal, in sorting, was to adhere to the strict measurement requirements of each of the prawns. Crown's Position with respect to Count 6 (Undersized Prawns) [ 143 ] Crown submits that, based upon the evidence, that Mr. Gurr should be acquitted because he was not part of the size sorting process for the prawns. [ 144 ] With respect to Mr. Bennett, Crown concedes that the procedures utilized by Mr.

Bennett on the Zomby Woof , although not perfect, did demonstrate an adequate due diligence in order to avoid the retention of undersized prawns. The amount of undersized prawns was, in this case, statistically quite small. That point is also conceded by Crown. Defence's Position with respect to Count 6 (Undersized Prawns) [ 145 ] As I understand it, Mr. Bennett agrees with the position being advanced by the Crown. Analysis and Conclusion with respect to Count 6 [ 146 ] Based on Mr.

Bennett's evidence of the procedures utilized to prevent the retention of undersized prawns in a commercial fishery setting, and given the small number of undersized prawns in a relatively large catch, I am satisfied that a due diligence defence is available to Mr. Bennett and to Mr. Gurr. Accordingly, they are both acquitted on the charge contained within Count 6. [ 147 ] That concludes my reasons for judgment. We will now turn to submissions on sentencing. [ 148 ] MR. GIBSON: Thank you, Your Honour. I just had one question.

It went back to the two counts that you entered convictions on. [ 149 ] My notes were convictions on Counts 2 and 3 versus Mr. Bennett. I am not sure whether you mentioned Mr. Gurr. So, was he also convicted of those? [ 150 ] THE CLERK: He's not on Counts 2 and 3. [ 151 ] MR. GIBSON: Oh, he's not on 2 and 3? [ 152 ] THE COURT: I think it's only Mr. Bennett on Counts 1 to 4. [ 153 ] MR. GIBSON: Sorry about this. Could I just see the copy of the Information? [ 154 ] THE COURT: Yes, there was an amended -- [ 155 ] MR.

GIBSON: Unfortunately, I think I've just got a copy of the first Information from the [indiscernible/overlapping speakers]. Thank you. [ 156 ] THE COURT: Yes, it's the -- that was on the C-2. [ 157 ] MR. GIBSON: Yes, that is correct. Okay, thank you. (REASONS FOR JUDGMENT CONCLUDED)