R. v. McDonald Date:, 2011 BCPC 75

Citation: R. v. McDonald Date: 20110324 2011 BCPC 0075 File No: 53015 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEWART LAWRENCE McDONALD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J. RODGERS Counsel for the Crown: John D. Whyte Counsel for the Defendant: Christopher Harvey Place of Hearing: North Vancouver, B.C.

Date of Hearing: October 21, November 12, 2010; January 26, 2011 Date of Judgment: March 24, 2011 [ 1 ] Stewart Lawrence McDonald is charged that on or about the 17 th day of June, 2009, at or near Porteau Cove Provincial Park in Howe Sound, in the Province of British Columbia, did place or set fishing gear ........... within a fishery during a close time, contrary to s. 25(1) and s. 78 of the Fisheries Act of Canada . [ 2 ] Counsel for Mr.

McDonald submits the Crown has failed to prove beyond a reasonable doubt: (1) that the Regulation and Variation Order creating the close time of the fishery were valid; and (2) that the fishery boundary signs were lawfully positioned; and (3) that it was lawful to use white wooden signs to mark the fishery boundaries rather than GPS coordinates; and (4) that Mr. McDonald placed fishing gear within the boundaries of the fishery during a close time.

The Legislation [ 3 ] The Fisheries Act , s. 25 (1) states: Subject to the regulations, no person shall place or set any fishing gear or apparatus in any water, along any beach, or within any fishery during a close time. [ 4 ] The Fishery (General) Regulations enacted pursuant to the Fisheries Act contain the following provisions: 6 (1) where a close time ... is fixed in respect of an area under any regulations ... the Regional Director-General may, by order, vary that close time ... in respect of that area or any portion of that area. [ 5 ]

Schedule VII subsection 5 of the Regulations entitled “Shellfish Close Times” states that prawn fishing in any subarea is closed between January 1 to December 31.

[6] The Pacific Fishery Management Area Regulations, 2007,

section 5 states “The areas in the Canadian fisheries waters of the Pacific Ocean described in

Schedule 2 are hereby prescribed as management areas.” [7]

Schedule 2 sets out “Management Area Boundary Descriptions” and defines subarea 28-4 which includes Porteau Cove as: Subarea 28-4 Those waters of Howe Sound inside a line thatbegins at......................................... 49o35.242’N 123 o16.159’W [mainland] then to.................................................. 49 o34.787’W 123 o13.663’W [south of Furry Creek] then southerly following the shoreline to... 49 o31.558’N 123 o15.673’W [Brunswick Point] then to.................................................. 49 o30.614’N 123 o18.214’W [Irby Point] then following the easterly shoreline of Anvil Island to ............................................... 49 o33.348’N 123 o19.415’W [Domett Point] then to.................................................. 49 o33.251’N 123 o21.500’W [east of McNab Creek] then northeasterly following the shoreline to the beginning point. [8] On April 14, 2009, by Variation Order, No. 2009-132, the Regional Director-General of the Pacific Region published thefollowing: The Regional Director-General of the Department of Fisheries and Oceans for the Pacific Region, pursuant to subsection 6(1) of theFishery (General) Regulations hereby repeals Pacific Region Close Time Variation Order, No. 2008-241, made June 20, 2008, andmakes the annexed Order varying the close times for fishing for ... (shrimp) ... prawn shrimp ... in Areas ... and in portion of Areas ... 28... by trap, effective at 12:00 h May 7, 2009. [9] At

section 8 of the

schedule attached to the Variation Order there is a reference to subarea 28-4 which states: Except that portion east of a line from the white fishing boundary sign located at the south shore of Porteau Cove to the white fishingboundary sign located on the north shore of Porteau Cove. [10] The effect of this Variation Order on the Regulation was to open the prawn fishery in subarea 28-4 on certain dates includingJune 17, 2009 which is the date of the alleged offense.

However, the Variation Order continued to close the prawn fishery in subarea 28-4 at Porteau Cove within an area defined by the northern and southern white fishing boundary signs. [11] Counsel for Mr.

McDonald submits that the Regional Director General lacked the legislative authority to create the VariationOrder of the Regulation so as to open the prawn fishery in subarea 28-4 and continue to close the prawn fishery in subarea 28-4 within anarea defined by the northern and southern white boundary signs. [12] The Courts have long recognized the principle of law “delegatus non protest delegare” which means that a delegated authoritycannot lawfully be delegated to another unless expressly authorized. This principle has been upheld in the case Antonsen v.

Canada (FC), [1995] 2 F.C. 272 where at page 13, Reed, J. stated: The law has long set its face against ill defined powers of sub delegation and interpreted such strictly. Decision making by sub delegates,based on broad and undefined powers, can too easily lead to the real reasons for a decision being obscured...; such authority can tooeasily be exercised in an unfair manner. [13] The British Columbia courts have applied this principle in a number of fisheries cases. [HMTQ v. Kelly Anderson, PCBC, PrinceRupert Registry 10120C, October 16, 1987; HMTQ v.

Mark, Cty Ct BC, Prince Rupert Registry 10467, May 12, 1989 and Prince RupertRegistry 9125C2, March 5, 1990]. [14] These fisheries cases from the 1980’s, while setting out the “no delegation” principle, have no application to Mr. McDonald’scase presently before this Court. The legislative scheme has changed (perhaps in response to these Court decisions) so that thedelegation of authority stops at the office of the Regional Director – General. [15] The Regulation and Variation Order which form the basis of the charge against Mr.

McDonald were promulgated by theRegional Director – General pursuant to statutory authority given to that office. I do not find there was any unlawful sub delegation. [16] I have also considered and find persuasive the case of R. v. Cox, 2003 NLSCTD 56, upheld on appeal 2004 NLCA 54, whereinthe Court considered the Fishery (General) Regulations. The Court stated: Needless to say, however, statutory grants of [sic] authorize a spectrum of administrative action, from a purely mechanical at one end, toinstances at the other end where the element of discretion or judgment is substantial.

And not unexpectedly, there is no ‘bright-line’ testfor distinguishing administrative acts from other types of decision making by officials. As was said by one judge: “there is sometimes afine line to be drawn between powers that are legislative or administrative”. Accordingly, Courts are apt to deal more satisfactorily withthe realities of public administration when they adopt a pragmatic or functional analysis.

Thus, from that perspective, statutory powersshould only be labelled as ‘administrative’ when considerations of practicality and efficiency which generally favour subdelegationoutweigh those of accountability and judgment, which usually favour a decision by the statutorily-designated body or official. [emphasisadded]

[ 17 ] In R. v . Cox , the Newfoundland and Labrador Court of Appeal adopted the decision in R. v . Corcoran , (1999) 181Nfld R 341, holding that: The actual operation and administrative control of fisheries must of necessity be placed in the hands of the operatives of the controlling government department. It should not come as any surprise when the representatives of the Minister are clothed with the authority to do this work...

The Fishery (General) Regulations were passed specifically to allow decision-making to be able to trickle down from the department offices and the Minister to the field where administrative functions have to work for the clear objectives of the control, management, protection, and conservation of the fishery.

One only has to turn on the radio or open [a] newspaper to see how the micro level of operation is so vital to the proper management of the species. [ 18 ] If I am wrong and there was some delegation of authority which created the close fishery in subarea 28-4 at Porteau Cove, then I would apply the reasoning in Cox and Corcoran ( op cit ) and hold that such delegation was lawful. [ 19 ] Therefore I reject the submission of counsel for Mr. McDonald that the Crown has failed to prove beyond a reasonable doubt that the Regulation and Variation order creating the close fishery were valid.

Northern Boundary Sign [ 20 ] Counsel for Mr. McDonald submits the northern boundary sign for subarea 28-4 at Porteau Cove was unlawfully located. [ 21 ] The northern boundary sign consists of four boards, each approximately four feet long and six inches wide which have been nailed together to form a square and painted white. Fisheries Officer David Loop testified that he was familiar with the northern and southerly boundary signs in the Porteau Cove close area. In 2009 a small landslide destroyed the northern boundary sign.

The officer directed the Porteau Cove park staff to build a new sign and affix it to a tree nearest to where the old sign was located. As a result, the new sign was located approximately two to five metres from the old sign. [ 22 ] Counsel for Mr. McDonald submits that Fisheries Officer Loop unlawfully altered the boundaries of the close fishing area when the sign was relocated following the landslide. [ 23 ] I agree that only the Regional Director-General has the authority to define the boundaries of a close area and a Fisheries Officer does not have that authority.

Nevertheless, choosing a tree to which the boundary sign will be affixed does not constitute the exercise of any measurable degree of authority by the Fisheries Officer. [ 24 ] Further, I find that moving the boundary sign two to five metres has no measurable effect upon the boundaries of the close area. [ 25 ] I therefore reject the submission of counsel for Mr. McDonald that Fisheries Officer Loop unlawfully altered the boundaries of the close fishing area when the sign was relocated following the landslide. GPS Coordinates [ 26 ] Counsel for Mr.

McDonald submits that the boundaries of the close area were unlawfully defined as those boundaries were not set by reference to latitude and longitude coordinates which could be determined by a Global Positioning System (GPS). [ 27 ] In support of this submission, counsel for Mr. McDonald points to the use of the GPS system and latitude/longitude coordinates to establish the boundaries of various fishing areas and subareas. Also, the Regulatory Impact Analysis Statement published in the Canada Gazette

part II, BOL 141 no. 9, on 2 May 2007, stated: Each area and subarea is defined by a line joining a series of reference points. The reference points used to date include physical features, navigation aids, coordinates, and boundary signs. ... The

definitions of each area and subarea have been modified to remove reference to boundary signs and markers. ... The regulations have been criticized for their lack of precision because the area and subarea descriptions use reference points rather than latitudes and longitudes. ... [ 28 ] It was recommended in the Statement that the Regulations should be amended to use coordinates instead of physical reference points. However, counsel for Mr. McDonald could not point to any statutory requirement for the use of latitude and longitude coordinates when defining the boundaries of a fishing area or subarea.

Accordingly, I find that it was open to the Regional Director- General to use boundary signs such as those in place at Porteau Cove to define the boundaries of an area or subarea of a fishery. [ 29 ] I therefore reject the submission of counsel for Mr. McDonald that the boundaries of the close area were unlawfully defined as those boundaries were not set by reference to latitude and longitude coordinates which could be determined by a Global Positioning System (GPS). [ 30 ] Fisheries Officer Johanna Jenkins testified concerning the use of the square white boundary marker to indicate fishing boundaries.

She testified that prior to 2007, a red triangular sign was used but since then white square signs have been used. She referred to the Fisheries and Oceans Canada publication concerning tidal fishing which states: Boundary sign – boundary signs may be posted to help you identify close areas. A sing with a square outlined in white indicates a boundary of area close to sport fishing for any fin fish. A sign with a triangle outlined in white, yellow or orange is a boundary marker for management areas and when found at the mouth of a stream indicates the tidal mark.

These signs may also indicate boundaries of close areas. [ 31 ] While I have considered the testimony of F/O Jenkins, it is not relevant to the issue before this Court.

The Investigation [ 32 ] In June of 2009, Fisheries Officers received information that someone may be fishing inside the close area near Porteau Cove. On June 17, 2009, Fisheries Officer Robert Harris was assigned to conduct surveillance in the area. At 7:00 a.m., F/O Harris arrived at Porteau Cove and took up a position approximately three metres from the southern boundary sign marking the close area. He looked north and established that while the northern boundary sign was obscured by a tower on a pier in Porteau Cove he was confident of the location of the northern boundary as he was familiar with the area.

I accept the evidence of F/O Harris concerning the location of the northern boundary sign and the areas of the fishery at Porteau Cove which were open or closed. [ 33 ] At approximately 11:00 a.m., the vessel Mickey Finn arrived at Porteau Cove. F/O Harris began to video the Mickey Finn. [ 34 ] The video taken by F/O Harris was shown to the Court. Two orange balls, described as Scotsmen, can be seen on the waters of Porteau Cove outside the close area. The Mickey Finn is seen to go to the southern Scotsman and from there proceed inside the close area.

The Mickey Finn begins to retrieve approximately 20 prawn traps from the waters of Porteau Cove. The vessel proceeds in a semi circular direction until reaching the northern Scotsman which was located either on the close fishing boundary line or slightly outside it. [ 35 ] Fisheries Officer Harris was asked if prawn traps could be moved by tidal action. He was of the opinion that this would not occur in the waters of Porteau Cove which are sheltered.

He also noted on the video that anchors appear to be attached at two locations to the main line which connected the string of prawn traps. [ 36 ] Gordon Johnson was called by the defence to give evidence concerning prawn fishing. While I accept his evidence as being truthful, it was not helpful in determining the issues before the Court. With respect to setting prawn traps, Mr. Johnson testified that such traps may not land on the ocean floor directly below the spot where they are dropped into the water and may drift with the tide. However, Mr. Johnson usually fishes for prawns at a depth of 180 to 330 feet.

The evidence discloses that the Mickey Finn was setting prawn traps in a depth of five to eight metres which is approximately 15 to 24 feet. [ 37 ] I conclude that the Crown has proven beyond a reasonable doubt that the Mickey Finn did place or set fishing gear within a fishery during a close time. Indeed, the video evidence can lead to no other conclusion. [ 38 ] It is not disputed that Stuart McDonald was the skipper of the Mickey Finn on June 17, 2009, and that the fishing gear (prawn traps) seen in the video belong to the Mickey Finn. Conclusion [ 39 ] I find Mr.

McDonald guilty as charged in Count 2 of the Information that on or about the 17 th day of June, 2009, at or near Porteau Cove Provincial Park in Howe Sound in the Province of British Columbia, he did place or set fishing gear or apparatus in water, along a beach or within a fishery during a close time contrary to s. 25(1) and s. 78 of the Fisheries Act of Canada . ________________________________ The Honourable Judge W. J. Rodgers Provincial Court of British Columbia