R. v. Steer, 2023 BCPC 83

Citation: R. v. Steer 2023 BCPC 83 Date: 20230208 File No: 43016-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. STANLEY WILLIAM STEER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: A. Clarkson Counsel for the Accused: J. Turner Place of Hearing: Campbell River , B.C. Dates of Hearing: July 27 and December 1, 2022 Date of Judgment: February 8, 2023

[ 1 ] On August 23, 2018, Mr. Steer was convicted of a number of fisheries violations. He was ordered not to be on board any fishing vessel for 10 years commencing September 23, 2018. That order was varied, by consent, on August 29, 2019 to allow him to be on a fishing vessel but only in the following circumstances: a. The fishing vessel is stationary, docked, and tied to a dock affixed to land; b. Stan Steer is on board the fishing vessel for sole and immediate purpose of repairing the fishing vessel or fishing gear; c.

The person receiving the repair service from Stan Steer and the owner and operator of the fishing vessel and fishing gear is/are an arm’s length third party from Stan Steer; AND d. The fishing vessel and fishing gear is not owned by or used by Stan Steer, Scott Steer, Sammy Williams, David Andrews, Arthur Nelson, or Alfred Nelson. (the “Prohibition Order”) [ 2 ] The original order also prohibited Mr. Steer from owning or possessing any fishing gear of any kind. That order was also varied, by consent, on August 29, 2019 to provide that Mr. Steer was not to be on board a fishing vessel except if: a.

The fishing gear is on board a fishing vessel that is stationary, docked, and tied to a dock affixed to land; b. Stan Steer is on board the fishing vessel and in possession of the fishing gear for sole and immediate purpose of repairing the fishing gear; c. The person receiving the repair service from Stan Steer and the owner and operator of the fishing vessel and fishing gear is/are an arm’s length third party from Stan Steer; AND d.

The fishing vessel and fishing gear is not owned by or used by Stan Steer, Scott Steer, Sammy Williams, David Andrews, Arthur Nelson, or Alfred Nelson. [ 3 ] The varied order with the exceptions was explained clearly to Mr. Steer and a transcript provided for my review. Mr. Steer asked questions and I am satisfied he understood the conditions of the order. [ 4 ] Following an investigation, Mr.

Steer was charged with being unlawfully on board a fishing vessel on or about June 18, 2020 at or near Campbell River in contravention of the Prohibition Order. [ 5 ] The Crown has the obligation to prove, beyond a reasonable doubt, that Mr. Steer was on board a fishing vessel contrary to the Prohibition Order. While Mr. Steer takes no issue with the established jurisprudence that an accused must prove on a balance of probabilities that the exceptions apply, he asserts that the Crown must establish that the exceptions do not apply. If Mr.

Steer is successful, and assuming Crown can establish that he was on board a fishing vessel, he will be acquitted. [ 6 ] During the trial, I heard evidence from Fisheries Officers Greg Askey and Todd Parker. As is his right, Mr. Steer did not call evidence. [ 7 ] Fisheries Officer Greg Askey has been a fisheries officer for over 25 years. He had met Mr. Steer several times over his career and is familiar with him. He was aware that Mr. Steer was subject to the Prohibition Order.

On June 18, 2020, at about 1 p.m., Officer Askey and his colleague Fisheries Officer Beckett were at the Discovery Harbour Marina conducting a plain clothes investigation into Sammy Williams and a vessel called the Kestrel. He saw the Kestrel tied to the dock and two men and one woman on board. He was “pretty sure” it was Mr. Williams and believed that the Kestrel was associated to him. He believed the woman was Ms. Sonja Maquinna, Mr. Williams’ girlfriend. The other man was wearing orange coveralls and he was “pretty certain” it was Mr.

Steer. [ 8 ] He made these observations while standing on land by the Riptide Pub located just above the marina. His colleague took a number of photographs of the vessel and the three individuals on board. The farthest distance from the Kestrel was about 60 to 70 yards although some were a bit closer. He used a zoom lens to capture a number of the images. Officer Askey walked down to the vessel and continued to take photographs. He observed, and photographed, a truck in the parking lot near the ramp which he identified as belonging to Mr. Steer. As he made his way down to the dock, he saw Mr. Williams and Ms.

Maquinna get off the vessel. He struck up a conversation with Mr. Williams and asked him about the boat. He was about 2 or 3 feet away from Mr. Williams and spoke to him for about 5 or 10 minutes. He was able to see his face clearly and testified that it was a sunny day. He could hear him speaking. The men were facing each other and Officer Askey testified that he was “pretty certain at that point that it was Sammy Williams”. [ 9 ] During the conversation with Mr. Williams, the man he thought was Mr. Steer came out of the wheelhouse door, said something to Mr. Williams, and then went back inside.

He was about 10 feet away. Officer Askey described that the man was an older male, with bushy grey hair and, at the time, a moustache. Officer Askey did not include this description in his notes. When the officers left, a plate query on the truck seen in the parking lot confirmed that Mr. Steer was the registered owner. [ 10 ] Photographs of the vessel show a number of larger, round orange or red plastic floats. Other photographs just depict, generally, the vessel including how it was equipped. [ 11 ] Officer Askey testified that after July 2020 he was asked to obtain a statement from Mr.

Williams on another matter. He located his residence and spoke to a person he believed to be Mr. Williams’ brother. He had to come back the next day and this time he believed that it was Sammy Williams who answered the door. It was day time and he had a clear view of this person’s face and was about 1.5 to 3 feet away – what he called “conversation distance”. They spoke briefly and no statement was taken. He was with the man he believed to

be Sammy Williams for about 5 to 10 minutes and heard his voice. He testified that the person he saw on June 18, 2020 and on board the Kestrel was the same person he saw later when he attended at the Williams’ residence. [ 12 ] In cross examination, he testified that the Kestrel caught his attention initially because it was in a place where it was not usual for fishing vessels to tie up. He had never met Mr. Williams before although he has seen him on a video and testified that Mr. Williams has been the subject of countless bulletins and was familiar with him after seeing many photographs.

Some were close up of Mr. Williams’ face and he was able to identify him from those photographs. He agreed that on the day of this investigation he hadn’t looked at photographs of Mr. Williams but stated that he was familiar enough with his appearance that he didn’t need to do so. He thought the last time he had seen a photograph of Mr. Williams was the month before. [ 13 ] He testified that he had information about a woman named Ms. Maquinna and that he had read numerous DFO bulletins about her being in a relationship with Mr. Williams and working in association with him and the Steer family.

He believed that she was known as Mr. Williams’ girlfriend. He agreed that just on the basis of the photographs he took of the woman, an identification would not be possible. [ 14 ] He was cross examined extensively on his notes. He agreed that he didn’t note the physical characteristics of the man he believed to be Mr. Steer, about the woman he believed to be Ms. Maquinna, or about the man he believed to be Mr. Williams. [ 15 ] Fisheries Officer Todd Parker has been a fisheries officer for about 25 years.

Before becoming a fisheries officer, he was a fisheries inspector for the Ministry of Agriculture for 4 years. He was qualified as an expert and permitted to give opinion evidence in the area of identification of fishing vessels, including design and outfitting. [ 16 ] Based upon his review of the photographs of the Kestrel taken by Officer Askey he formed the opinion that it is a fishing vessel. His opinion is based on a number of factors: a.

The framing with a canvas top over the middle of the vessel is used in prawn fishing vessel to keep sunlight from the product as it is being caught, sorted and put into boxes. b. The hold lid is insulated and is a cover to an insulated hold which keeps produce dry or below ambient temperature. c. There is a hydraulic pulley that is used to pull trap gear from the ocean, specifically, prawn gear, and makes it much easier than hand pulling. d. A “steering jog” can be seen on the deck. This is used to operate the vessel from the deck rather than needing to be in the wheelhouse.

This means that gear can be brought up and the vessel steered at the same time. e. A hydraulic pulley is used in prawn or crab fisheries because so many traps go out on a line. Due to the weight, a person would not be able to pull it up physically. f. A cross piece can be seen that is used for a hydraulic or electric pulley. Equipment on the sides and some of the gear would potentially be used for trolling or vessel stabilization in bad weather. g. There is a radar dome (FURU) for use in bad weather. h.

The shape of the vessel follows the design of many older fishing boats – the high bow, small wheelhouse and cabin structure and it has a lot of deck space behind the deck house. i. The red or orange plastic items are buoys used in the prawn or crab fishery, as well as potentially other things. They appear brand new and are fairly large. Crab fisheries use smaller buoys. [ 17 ] He also reviewed the Aboriginal Communal Fishing Licence to Harvest and Sell Prawn for the “Five Nations”. It was valid from June 4, 2020 to July 31, 2020.

He testified that this is a licence to catch and sell prawns and designates who is allowed to participate and the areas in which they are allowed to fish. It identifies or designates the vessels allowed to use the licence. The Kestrel is one of the authorized vessels. [ 18 ] Another factor in reaching his opinion that the Kestrel is a fishing vessel, is that the licence provides that each designated vessel is permitted to use a maximum of 300 traps with 6 ground lines (para. 8).

Furthermore, para. 9 of the licence provides that “prawn and shrimp trap gear shall be marked at both ends of the groundling by … a red or orange buoy with a minimum circumference of 127 cm ….” [ 19 ] According to him that would equate to 50 traps per line and it would be impossible to perform without a “gear hauler” – the pulley system he observed on the Kestrel. [ 20 ] He agreed in cross examination that he didn’t personally examine the Kestrel. According to Officer Parker, both the individual who wishes to use a commercial fishing vessel, and the vessel, must be licenced for something such as prawns.

Both licences are marketable. He was unable to determine just by looking at the Kestrel if it was licenced or not. He testified that commercial fishing vessels require a commercial fishing number on the side or top and he was unable to see any markings on the Kestrel. [ 21 ] If a boat was not licenced, it could not legally be involved in the fishing industry.

He agreed that some commercial fishing vessels are converted for recreational use although he believed it was not likely with a very old boat because it would make more sense to put money into something newer. [ 22 ] It was suggested that the red buoys could be used as bumpers, not as buoys for prawn fishing. Officer Parker pointed out the white bumper on the starboard side of the stern of the Kestrel. I noted that the photograph shown to the officer depicts the Kestrel

against the dock on its port side. If the orange or red buoys had been used as bumpers, they would likely not have been stored in themiddle of the deck space. Furthermore, the Kestrel had a white bumper on the starboard side, not a red or orange buoy. [23] Officer Parker reviewed the photographs of the Kestrel showing the mid deck and was not shaken in his opinion that the holdcover was one with insulation. [24] He was not undermined in cross examination.

He was clear, candid and objective in giving his evidence. [25] Both officers were excellent witnesses and I accept their evidence. [26] By agreement, a photograph taken by Fisheries Officer Beckett on June 19, 2019 showing a sign in the window of the Kestrelwith this writing “SONYA 778 268 0961” was made an exhibit without the need to call Officer Beckett to give evidence. [27] The Fisheries Act is a public welfare statute, offences under this legislation are strict liability offences and the Crown need onlyprove, beyond a reasonable doubt, the actus reus of the offence.

In other words, the Crown does not need to establish mens rea. [28] The Crown says that it has established the necessary elements – the actus reus - of the offence: that Mr. Steer was on board afishing vessel in British Columbia and that he was bound by the Prohibition Order on that day. [29] Mr. Steer admitted, appropriately in my view, that the evidence supports the following conclusions: a. Mr. Steer was on board the Kestrel at the material time; b. the Kestrel is a fishing vessel; c. Mr. Steer was subject to the Prohibition Order at the time; d. Mr.

Steer was working on the Kestrel; e. the Kestrel was moored and tied to a dock at the time; and f. Mr. Sammy Williams was also on board the Kestrel at the same time. [30] Mr. Steer did not call any evidence and therefore is not raising what is often referred to as a “due diligence” defence. [31] However, Mr. Steer says that the Crown also must not only establish that Mr. Steer was on board the vessel at the material time,but also that the person receiving Mr. Steer’s services was “arm’s length” (the third exception) and that Mr.

Williams “owned” or was“using” the vessel as set out in the fourth exception in the Prohibition Order. He asserts there is no evidence that Mr. Williams wasoperating any equipment or dealing in any way with items related to fishing or that he was doing anything on the vessel. Therefore, hesays, the Crown has not established the offence beyond a reasonable doubt. [32] In other words, Mr. Steer asserts that the Crown must establish that Mr.

Steer was not within the exceptions to the ProhibitionOrder. [33] I heard detailed submissions from the Crown relating to who must establish that an exception or excuse applies to relieve anaccused from guilt. The onus of proving an exception falls upon an accused to establish on a balance of probabilities that the exceptionapplies: R. v. Daniels, (BCCA). This has withstood constitutional scrutiny because it does not shift the proof of anelement of the offence onto an accused, only an exception. [34] Mr.

Steer does not take issue with the applicable law including who must establish that exceptions apply. [35] The law is clear that to avoid a finding that he failed to comply with the Prohibition Order, it is Mr. Steer who must establish on abalance of probabilities that all the exceptions apply. I conclude that the exceptions are joint and not “joint and several” by virtue of thewording which includes “AND” after the third exception. If Mr.

Steer is able to establish that his conduct falls within all thoseexceptions, he cannot be found to have been on a fishing vessel in circumstances contrary to the Prohibition Order. It does not fall on theCrown to establish that Mr. Steer’s conduct or actions do not fall within the exceptions. That would be contrary to well settledjurisprudence. [36] I find that the Crown has established beyond a reasonable doubt that Mr. Steer was on board the fishing vessel, the Kestrel,contrary to the Prohibition Order. While I conclude that the Kestrel was docked and tied to a dock affixed to land, and that Mr.

Steer wasrepairing the vessel or fishing gear, Mr. Steer has not established, on a balance of probabilities, that the person who received his services(in other words the person who hired him or who benefited from his services) was an “arm’s length third party”. He has also notestablished on a balance of probabilities that the Kestrel or the fishing gear he was repairing were “not owned by or used by SammyWilliams”.

Accordingly, he has not established on a balance of probabilities that his conduct falls within the exceptions contained in theProhibition Order. [37] I find that on June 18, 2020, at or near Campbell River, Mr. Steer was unlawfully on board a fishing vessel contrary to section79.6(

a) of the Fisheries Act. He is guilty of the offence set out in Count 1 of the Information. _______________________________

The Honourable Judge B. Flewelling Provincial Court of British Columbia