R. v. Duncan Date:, 2015 BCPC 176

Citation: R. v. Duncan Date: 20150616 2015 BCPC 0176 File No: 40533-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA ROBERT DUNCAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T.I. McFadgen Counsel for the Defendant: M. Sveinson Place of Hearing: Port Alberni and Nanaimo , B.C. Dates of Hearing: March 17, April 1, May 29, 2015 Date of Judgment: June 16, 2015

[1] Mr. Duncan is charged with an offence under

section 78 of the Fisheries Act RSC 1985, c F-14. In particular, it is alleged thathe contravened

section 26 of the Pacific Fishery Regulations, 1993 SOR 93-54, which provides: 1 Subject to subsection (2), no person shall fish except under the authority of a license issued under these Regulations …. 2 Subsection (1) does not apply to a person who is registered and who is engaged in commercial fishing for a species of fish from aregistered vessel that is authorized by a commercial fishing license to be used in fishing for that species. At the relevant times, Mr. Duncan was “registered”; i.e. he was the holder of a commercial fisher’s registration card issued by theMinister under

section 19 of the Pacific Fishery Regulations, 1993. For that reason, he was authorized by subsection (2) to fish for aparticular species from a registered commercial fishing vessel, but if and only if that vessel was authorized by a commercial fishinglicense to fish for that species. [2] On July 5, 2012, Mr. Duncan was the master of the “Western King”, a commercial fishing vessel owned by his grandfather. On that day, he set the nets of the “Western King” to catch salmon, and caught a large number of them.

The “Western King” hadpreviously been issued commercial fishing licences to fish for salmon, but the most recent license had expired in February, 2012. A newcommercial fishing license, which again authorized the “Western King” to fish for salmon, was issued on July 6, 2012. As a result, therewas in effect on July 5, 2012, no commercial fishing license which authorized the “Western King” to fish for salmon. [3] An offence under

section 78 of the Fisheries Act is a strict liability offence; “… the Crown is required to prove neither mensrea nor negligence; conviction may follow merely upon proof beyond a reasonable doubt of the proscribed act.”: R vs Henneberry 2009NSCA 112; [2009] NSJ No. 524 @ paragraph 33. In this case, it is proven beyond a reasonable doubt that Mr. Duncan was fishing forsalmon on July 5, 2012 and that the vessel in which he was fishing did not hold a commercial license to fish for salmon on that date. TheCrown has proven that Mr.

Duncan committed the proscribed act. [4] Proof of the proscribed act does not necessarily result in conviction for a strict liability offence. A number of defences may beavailable to the accused, depending on the nature and circumstances of the offence. In this case, Mr. Duncan relies on the defence of“officially-induced error”, relying on the judgment of Chief Justice Lamer in R vs Jorgenson (SCC), [1995] 4 SCR 55.

It should be noted that, while Chief Justice Lamer concurred in the result, the majority judgment (for the remaining eight justices) wasdelivered by Justice Sopinka, who did not agree that the defence of officially-induced error was available to Mr. Jorgenson. However,the reasoning of the learned Chief Justice has been adopted and applied in later cases: R vs Ralph (NL SC), [2002]NJ No. 322; R vs Shiner 2007 NLCA 18; [2007] NJ No. 101; R vs Robinson 2001 BCSC 204; [2001] BCJ No. 435. [5] Mr. Duncan gave evidence, and explained that: a.

On July 5, 2012, he was fishing for salmon in a part of the Alberni Canal known as “Area 23”. Area 23 is a subset of a largerarea known as “Area B”. b. The fishery in Area 23 is managed by the Area “B” Seine Harvest Committee, which is advised by the Area 23 WorkingGroup. Each committee includes representatives of Fisheries & Oceans Canada (“DFO”), the Province of British Columbia, FirstNations and commercial and sports fishers’ organizations. Mr. Chris Ashton is one of the representatives of commercial fishers on theArea 23 Working Group and the Area “B” Seine Harvest Committee. c.

For many years, the commercial salmon fishery in Area 23 has been a “pooled fishery”. In a pooled fishery, a managementcommittee decides on the total number of fish to be caught. Then the commercial fishers agree among themselves which boats will bepermitted to fish and how many salmon each may catch. Those agreements are communicated to, and approved by, the managementcommittee. The Area “B” Seine Harvest Committee performed that management function in Area 23. d.

Those boats which are assigned a catch in a pooled fishery, and which do not have the requisite licenses, may purchasetemporary assignments of licenses from other boats which do have the necessary licenses, and “… fish the quota …” of the assignedlicences during the pooled fishery. e. As a result of its participation in the Area 23 Working Group and the Area “B” Seine Management Committee, DFO was awareof, and at least tacitly approved, the practice of the pooled fishery for many years before 2012. f. In 2012, the “Western King” was assigned a quota of salmon for the pooled fishery to be conducted in July.

In accordance withthe practice established in previous years, Mr. Ashton notified Mr. Duncan that the “Western King” was authorized to participate in thepooled fishery, and of the quota assigned to it. g. The owners of the “Western King” then purchased assignments of commercial salmon licenses from other boats, with sufficientquota to allow the “Western King” to catch the number of salmon authorized by the Area “B” Seine Harvest Committee. h. On July 5, 2012, Mr. Duncan believed that the Area “B” Seine Harvest Committee had the authority to authorize him to fish,and had done so.

He believed that he was entitled to fish under the authority of the licenses issued to other boats and temporarilyassigned to the “Western King”. [6] DFO is authorized by the Fisheries Act and the regulations to exercise discretionary authority over many aspects of fisheriesmanagement. For example, the times and places in which commercial salmon fishing may be carried on, and the quantities to be caught,are determined by DFO from time to time. DFO issues “fishery notices” to inform commercial fishers of those determinations.

Anyonemay register to receive copies of fishery notices from DFO by e-mail when they are issued. [7] Like most commercial fishers, Mr. Duncan subscribed to that e-mail service. On June 22 and July 3, 2012, DFO issued fishery

notices in relation to the Area 23 salmon fishery. Mr. Duncan received and read each of them before July 5, 2013. Each of them contained the following passage: The involvement of the Area B seine fleet in the Alberni Inlet sockeye fishery is dependent on the Area B Seine Harvest Committee developing and implementing a fishing plan that limits the harvests of sockeye to weekly target allocations. This fishing opportunity is possible due to the cooperation between Fisheries Management staff and the Area B Harvest Committee to actively manage this weekly fishing plan.

As a result, Area B vessel masters and vessels must be designated by their representative Working Group body and subsequently by the Area B Harvest Committee to participate in this fishery. The fishery will not proceed should undesignated seine vessels attend or attempt to participate in this fishery. Mr. Duncan said that: a. Mr. Ashton told Mr. Duncan that the “Western King” had been designated by the Area 23 Working Group and the Area B Seine Harvest Committee to participate in the sockeye fishery during the week including July 5, 2012. b. Mr.

Ashton was a member both of the Area 23 Working Group and the Area B Seine Harvest Committee. c. He believed that designation by the Area 23 Working Group and the Area B Seine Harvest Committee was a sufficient authorization to allow the “Western King” to fish on July 5, 2012. [ 8 ] I entirely accept Mr. Duncan’s sincerity, and that his description of his state of mind is accurate and truthful. [ 9 ] The practices described by Mr. Duncan are not authorized by the Fisheries Act and regulations. a. Section 26(2) of the Pacific Fishery Regulations, 1993 provides a limited exception to subsection (1).

That limited exception is specific to the vessel or vessels named in a commercial fishing license. The regulation does not empower private citizens to amend the license by assigning it to other vessels. b. The Pacific Fishery Regulations do not empower anyone to confer additional exceptions or exemptions from section 26(1).

A committee, no matter how composed, cannot authorize a person to engage in fishing without the license required by the regulations. [ 10 ] At paragraph 28 of Jorgenson , Chief Justice Lamer said that the first step in considering a defence of officially-induced error is to determine whether the error was one of law or mixed fact and law. I would characterize Mr. Duncan’s errors in the following way: a.

He believed that the existence of a temporary assignment of a valid commercial fishing license in favour of the “Western King” (or its owner) was a sufficient compliance with section 26(2) of the Pacific Fishery Regulations. b. He believed that the assignment of a quota to the “Western King” by the two committees was a sufficient legal authorization for him to catch that quota.

I would characterize each of those as an error of law. [ 11 ] At paragraphs 29 - 30 of Jorgenson , Chief Justice Lamer said (underlining added): Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences of her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence , we ensure that the incentive for a responsible and informed citizenry is not undermined.

It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible. The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official . … the official must be one whom a reasonable person in the position of the accused would normally consider responsible for advice about the particular law in question. [ 12 ] I am satisfied that Mr. Duncan gave conscious thought to the licensing requirements before he embarked on his fishing voyage in July, 2012.

He inferred from his knowledge of past practice that temporary assignments of commercial fishing licences from one boat to another were permissible, and that an assignment of a quota by the Area “B” Seine Harvest Committee was sufficient to allow a boat to harvest the assigned quota. I do not think it right to characterize his mistaken belief as an assumption.

Rather, it was an inference derived from industry practice and from his belief, well or ill founded, that DFO acquiesced in that practice. [ 13 ] I note Chief Justice Lamer’s observation that a person who invokes the defence of officially-induced error must show that he “… sought advice …” about the legal position. Apart from his e-mail subscription to DFO’s fishery notices (which I discuss below), Mr. Duncan sought no advice in relation to the two legal questions in issue.

As will be apparent, it is unnecessary for me to decide the point in this case, but it may be that there are exceptions to the requirement as stated by Chief Justice Lamer. I can imagine that, if: a. a government department were to issue a public statement expressing the government’s understanding of a regulatory requirement; and b. a citizen were to read that public statement and arrange his affairs in reliance on it, the statement might give rise to a defence of officially-induced error, even though the citizen had not actively sought out advice, but rather had simply relied on the government publication.

[ 14 ] The fundamental difficulty faced by Mr. Duncan is that, apart from the fishery notices, it has not been shown that he relied on any statement by any government official. Mr. Ashton is not a government official. Different considerations might arise if there were evidence that Mr. Ashton simply passed on to Mr. Duncan advice provided to Mr. Ashton by a government official, but there is no such evidence in this case. No member of the Area 23 Working Group or of the Area B Seine Harvest Committee gave evidence.

As a result, there is no evidence of the proceedings of those committees, of DFO’s role in those committees, or of DFO’s participation in the organization and administration of pooled fisheries (either in general or in Area 23 in particular). Mr. Duncan believes that DFO has acquiesced in the practices of pooled fisheries for years. However, that belief is founded upon information provided to him by others. Those with personal knowledge of DFO’s participation in pooled fisheries were not called to give evidence.

As a result, there is no evidentiary basis for a conclusion as to DFO’s knowledge of or acquiescence in the administration of pooled fisheries. It may be that official acquiescence gives rise to a defence analogous to officially-induced error. However, that important legal question should not be considered in the absence of a specific evidentiary foundation. [ 15 ] Because the fishery notices are the only government statement proven in this case, Mr. Duncan’s defence of officially-induced error must stand on them alone.

He says, and I accept, that he inferred from them that, if the “Western King” were designated to participate in the fishery by the Area 23 Working Group and the Area B Harvest Committee, then it was permissible for the “Western King” to fish under the authority of the temporarily assigned licenses. [ 16 ] At paragraph 33 of Jorgenson , Chief Justice Lamer said that an accused person who invokes the defence of officially-induced error must show that the advice relied upon was reasonable, but that “… the advice obtained will be presumed to be reasonable unless it appears on its face to be unreasonable”.

I think it important to bear in mind that, when he said that, Chief Justice Lamer had in contemplation a situation in which a citizen makes an individual enquiry of a government official and receives a direct, individual response to her enquiry. Mr. Duncan’s situation is different. He posed no question directly to a government official. Rather, he relies upon his

interpretation of a government publication, addressed to the public at large, which did not directly address the issue which now arises; i.e. whether one boat may lawfully fish under the authority of a temporary assignment of a commercial fishing license issued to another boat. Assuming, without deciding, that the defence of officially-induced error may arise in such circumstances, it seems to me that the accused must show that his

interpretation of the government publication, and his reliance upon it, were reasonable. [ 17 ] I do not think that Mr. Duncan’s

interpretation of the fishery notices was reasonable, nor that his reliance on them for the relevant purpose was reasonable. The fishery notices were directed to two questions: (

i) which boats would be permitted to fish in Area 23 during the weeks in issue; (ii) how many salmon each boat would be permitted to catch. The fishery notices were not directed in any way to the question whether the boats would be required to have valid commercial fishing licenses. As noted above, the first two questions were within the ambit of the discretionary powers conferred on DFO by the statute and regulations. The third was not. The fishery notices were restrictive in operation.

They said, in effect, that no boat, licensed or not, would be permitted to participate in the specified fishery unless designated by the Area 23 Working Group and the Area B Seine Harvest Committee.

It was not reasonable to construe the fishery notices to be expansive in operation; i.e. to say, in effect, that, if designated by the Area 23 Working Group and the Area B Seine Harvest Committee, a boat would be excused from compliance with the licensing requirements of the regulations. [ 18 ] The actus reus being proven beyond a reasonable doubt, and the defence of officially-induced error having failed, it follows that Mr. Duncan must be convicted of the offence charged. June 16, 2015 ____________________________ T. Gouge, PCJ