2019 NBPC 2, 2019 NBPC 2

Citation No. 2019NBPC02 Information No. 2018-06573 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT HER MAJESTY THE QUEEN -v.- GUY LEBRETON Appearances: Guy Lebreton, on his own behalf Sylvia Mendez-Roux, for Her Majesty the Queen [TRANSLATION] 1. As the Court indicated when it handed down the oral decision in this case, this written decision expands on the issue of applyingthe principles articulated in Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729, namely the rule against multipleconvictions, in cases of regulatory offences. 2.

I also want to expand on the issue of the application for an order under s. 75(4) of the Fisheries Act, R.S.C. 1985, c. F-14 in thiscase. 3. Following a trial, Mr. Lebreton was convicted of the following charges, all under s. 78(

a) of the Fisheries Act: 1) Fishing for lobster during a close time, contrary to s. 57(1)(

a) of the Atlantic Fishery Regulations, 1985, SOR/86-21; 2) Fishing without a licence for a species of fish set out in

Schedule I, in violation of s. 14(1)(

b) of the Regulations; 3) Placing or setting fishing gear or a fishing apparatus in the water during a close time, in violation of s. 25 of the Act;

4) Possessing fish caught in contravention of the Act or Regulations, in violation of s. 33 of the Act; 5) Possessing lobster of a length less than 77 mm, contrary to s. 57(2) of the Regulations, as amended by a Gulf Region VariationOrder; 6) Possessing lobster during a close time, contrary to s. 57(1) of the Regulations. 4. The Crown requested that fines be imposed for each offence, and the forfeiture of the property seized in this case, including aDodge truck. 5.

The issue of applying the Kienapple principles to regulatory offences was discussed in these terms by the Court of Appeal ofAlberta in R v Cochrane, 2014 ABQB 180 : I. Kienapple and regulatory offences [174] Kienapple analysis generally occurs in circumstances where an accused faces two or more charges under the Criminal Code orthe Controlled Drugs and Substances Act, SC 1996 c 19. A potential complication arises where an accused faces, for example, a chargeon one criminal offence and a charge on one regulatory offence.

The case law makes it clear that Kienapple can apply to regulatoryoffences as well as criminal offences.

In R v Wigglesworth, (SCC), [1987] 2 SCR 541 at 561, Wilson J said, in thecontext of s. 11 of the Charter, a regulatory offence constitutes a true offence where the accused faces true penal consequences ifconvicted: In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitudewould appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internaldiscipline within the limited sphere of the activity. 6.

It is clear that offences under the Fisheries Act and its regulations lead to true penal consequences. In this regard, see s. 78 of theAct: Offence and Punishment 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 thousanddollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term notexceeding one year, 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. 7. I am therefore applying the Kienapple principle in this case. According to R. v. Prince, [1986] 2 SCR 480, (SCC), this rule is applicable when there is: • a relationship of sufficient proximity firstly as between the facts, and • a relationship of sufficient proximity as between the offences; 8. According to Prince, in most cases the factual nexus requirement will be satisfied by an affirmative answer to the question: Does

the same act of the accused ground each of the charges? In this case, it does. 9. Next, the relationship as between the offences has to be considered. The first count is fishing for lobster in a closed area; the thirdcount is placing gear in the water during a close time; the fourth count is possessing fish caught in contravention of the Fisheries Act;and the sixth count is possessing lobster during a close time. 10. Essentially, the same act grounds counts 1, 3, 4, and 6 and there is a close relationship as between the offences.

In accordance withthe Kienapple rule, I find that counts 1, 3, 4, and 6 fall under the multiple convictions rule. I am therefore going to impose a sentence onthe first count and declare a stay of proceedings on counts 3, 4, and 6, as would be done, for example, in a case where, after trial, a courtconvicted the accused of operating a motor vehicle while impaired and of having a blood alcohol concentration exceeding 80 mg ofalcohol in 100 ml of blood, if, that is, both charges stemmed from the same act. 11.

However, the second count is a specific offence – namely fishing for lobster without a licence – that does not have a relationship ofsufficient proximity with the other offences. 12. The fifth count, namely possessing lobster of a length less than 77 mm, is also specific and does not have a relationship of sufficientproximity with the other offences. 13. So, on the first count, namely fishing for lobster during a close time, I am imposing the $4,000 fine or 44 days on default ofpayment, based on the case law submitted by the Crown. 14.

On the second count, namely fishing without a licence, I am imposing the $500 fine or five days on default of payment, based on thecase law submitted by the Crown. 15. On the fifth count, namely possessing lobster of a length less than 77 mm, I am imposing a $3,100 fine or 34 days on default ofpayment, based on the case law submitted by the Crown. The calculation is as follows: $1,000 for the first lobster, and $150 for the 14subsequent lobsters, for a total of $3,100. 16.

The Crown applied for a forfeiture order with respect to all the things seized in connection with the offences, including the 2008Dodge Ram truck. 17. Ms. Albert, Mr. Lebreton’s former partner, testified that she owns the truck. She is still paying to insure it. She confirmed that shewas not complicit in the offences in this case and that she was not aware the truck in question was being used to commit the offences. Ms. Albert confirmed that she was never aware of Mr. Lebreton’s activities in relation to illegal lobster fishing. At the time of theoffences, she no longer lived with Mr.

Lebreton and had loaned him the truck because he did not have a vehicle for personal use and forwork.

Section 75 of the Fisheries Act deals with the application that may be made by a person (other than the person convicted) to claimproperty seized in relation to an offence. The owner of the property may apply to the judge to issue an order declaring that the forfeitureof the property does not include the owner’s property; in other words, the owner may apply to the judge for the return of the seizedproperty.

There are two conditions: the judge must be satisfied that 1) the owner of the property is innocent of any complicity with theperson convicted; and 2) the owner of the property exercised all reasonable care to satisfy himself or herself that the thing was not likelyto be used to commit the offence. 19. The first condition is met in this case. Ms. Albert, whom I found credible, testified and confirmed that she was not complicit. Withrespect to the second condition, i.e., exercising all reasonable care to satisfy oneself that the property will not be used to commit anoffence, I turn to the case law. 20.

In Greening v. Canada (Minister of Fisheries and Oceans), (NL SC), the Newfoundland Supreme Court, TrialDivision, discusses the onus the applicant must overcome to obtain an order under s. 75(4) of the Fisheries Act. At para. 9, the courtrefers to some decisions dealing with applications made under the Customs Act, RSC 1985, c 1, which contains provisions similar to

those in s. 75(4) of the Fisheries Act. These decisions are: Tulk v. Canada (1988), (NL SC), 74 Nfld. & P.E.I.R. 322; 231 A.P.R. 322; Walsh v. Minister of National Revenue(Customs and Excise) (1990), (NL SC), 85 Nfld. & P.E.I.R. 339; 266 A.P.R. 339; Evan's Sales and Service Ltd. v.Minister of National Revenue (Customs and Excise) (No. 1) (1990), (NL SC), 85 Nfld. & P.E.I.R. 343; 266 A.P.R.343; and Strong v. Canada (1991), (NL SC), 92 Nfld. & P.E.I.R. 129; 287 A.P.R. 129. 21.

In Tulk, the court spoke of the obligation imposed by the legislation on the owner of the property, that is, to take precautions tosatisfy himself or herself that the thing is not likely to be used during an offence. The court uses the expression “positive enquiry” inreferring to this obligation, which I translate loosely as a “positive obligation to question”. The courts have considered this obligationand concluded that the standard of conduct is that of a reasonable man (D.M.N.R. v. Industrial Acceptance Corporation (1958), (SCC), 15 D.L.R.(2d) 369 (S.C.C.)).

The question, then, is what a reasonable person would have done to take suchprecautions. This “positive obligation to question” varies with the circumstances of each case, according to Re Fitz-patrick andIndustrial Acceptance Corporation (1958), (NL SC), 42 M.P.R. 42: a relatively limited degree of active enquiry mightsatisfy the requirement in most cases. The nature and scope of the enquiry are assessed based on the specific circumstances of thesituation. 22. The circumstances in Greening were different than those in the instant case.

In Greening, a snowmobile had been seized in thecourse of an investigation into illegal cod fishing. Such illegal fishing was a commonplace activity in the area and carried on in full viewof those who drove around there. The circumstances in Greening suggested that the owner of the snowmobile was aware of the illegalfishing activities in the area. The court found that the potential use of the snowmobile for illegal fishing would be within thecontemplation of a reasonable person.

The court therefore held that in the absence of even a minimal attempt at reasonable care(“reasonable care” is the term the court uses) by the owner of the snowmobile, the application should be dismissed. 23. In this case, I am satisfied based on Ms. Albert’s testimony that she exercised all reasonable care to satisfy herself that the truckwould not be used to commit an offence. She testified that she let Mr. Lebreton use the Dodge truck for his personal needs and forwork. She confirmed that she did not know Mr. Lebreton engaged in illegal lobster fishing.

As seen above, a relatively limited degree ofactive enquiry might be satisfactory in most cases. Ms. Albert did what a reasonable person would have done in this case: loaned thevehicle to her former partner to help him, in light of what she knew, namely that Mr. Lebreton did not have a vehicle and that he neededone for personal use and for work. A reasonable person would not have questioned Mr. Lebreton any more thoroughly in suchcircumstances. 24. The forfeiture order sought by the prosecution is issued with respect to the property seized in this case, except for the Dodge truckowned by Ms. Albert.

Dated at Caraquet, New Brunswick, on February 1, 2019. _______________________________________ The Honourable Johanne-Marguerite Landry Judge of the Provincial Court