2023 NBPC 5, 2023 NBPC 5

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Trial Date: February 9 th , 2023 Decision Date: April 12 th , 2023 Docket No.: 159581 Neutral Citation: 2023NBPC05 HIS MAJESTY THE KING - and - GREGORY W. ROSS Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: This decision was edited for non-substantive/grammatical purposes subsequent to its oral delivery on April 12 th , 2023 APPEARANCES: Guylaine Basque and Ryan Ballak, on behalf of His Majesty The King Gregory W. Ross, per se DELIVERED ORALLY INTRODUCTION 1 . Gregory W. Ross, (“Mr.

Ross”) stands charged with two strict liability offences under the Fisheries Act , R.S.C. 1985, c. F-14 (the “ Act ”) in an Information sworn to before this Court on May 30 th , 2022. The charges, as amended, read as follows: Count 1) On or about the 3 rd day of March, 2022, at or near Oak Point, in the County of Northumberland and Province of New Brunswick, failed to produce his fishing registration on demand of a Fishery Officer, contrary to

section 11 of the Fishery (General) Regulations, SOR/93-53 , and did thereby commit an offence under

section 78 of the Fisheries Act , R.S.C. 1985, c. F-14 , and any amendments thereto. And furthermore, Greggory W. Ross Count 2) Did, on or about March 3, 2022, in the waters of the Gulf of St. Lawrence, being in Canadian Fisheries Waters, adjacent to the Province of New Brunswick. Did unlawfully, leave or deposit or cause to be thrown, left or deposited, on the shore, beach or bank of any water, remains of Atlantic Tomcod contrary to and in violated of section 36(1) (

b) of the Fisheries Act , R.S.C. 1985, c. F-14 , and thereby committing an offence punishable on

summary conviction pursuant to section 40(2) (

b) of the Fisheries Act , R.S.C. 1985, c. F-14 . 2 . At his first appearance before this Court on these charges, Mr. Ross entered a guilty plea on Count #1 and plead not guilty to Count

#2. Accordingly, Count #2 forms the basis of this decision. 3. This Court must first determine whether the Crown has proved the actus reus, or “prohibited act”, of the offence beyond areasonable doubt. Because Count #2 is a strict liability offence, the Crown is relieved from having to deal with mens rea, or a “guiltymind”. 4. The actus reus in this case is informed by the express language of paragraph 36(1)(

b) of the Act, which entails “leaving ordepositing or causing to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high and lowwatermark, remains or offal of fish or marine animals”. 5. The Crown takes the position that Mr. Ross “left” or “deposited” Atlantic Tomcod on the “bank of any water” on March 3rd, 2022and, accordingly, that the actus reus of Count #2 has been established beyond a reasonable doubt. Mr. Ross takes the opposite position,stating:

(1) Atlantic Tomcod were caught incidental to his exercise of fishing rights pursuant to a commercial smelt fishing licence, (2)Atlantic Tomcod constitute a “legal bycatch” which he was entitled to keep pursuant to the terms of his smelt fishing licence, and (3) henever “left” or “deposited” Atlantic Tomcod on the “bank of any water”. Rather, he contends he temporarily put them on the ice to “flashfreeze”, always with the intention of collecting them and later using them as bait during the lobster fishing season the following month.In taking this position, Mr.

Ross emphasizes he was never more than 30 metres away from the Atlantic Tomcod and was simply fishinghis third and final net before collecting them. The language of paragraph 36(1)(

b) of the Act raises a number of statutory

interpretationissues that this Court must consider in some detail. 6. Though Count #2 is a strict liability offence, the framework outlined in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742must be followed as it pertains to the evidentiary underpinning of the actus reus of the offence. My colleague, Landry, PCJ, recently hadoccasion to extensively consider this very issue in the matter of R. v. Sherrard, a 2022 unreported decision. I adopt her reasoning andshall delve into its jurisprudential foundation more deeply in my consideration of the applicable law. 7.

Should the Crown satisfy this Court beyond a reasonable doubt that Mr. Ross indeed committed the actus reus of the offence, itbecomes open for Mr. Ross to raise a defence of due diligence by establishing that reasonable care was taken or a defence of mistake offact applies (see, generally, R. v Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 (S.C.C.)). Mr. Ross has raised a duediligence defence. In these circumstances, the onus is on Mr. Ross to establish due diligence, which must be proven on a balance ofprobabilities (see: R. v Pontes, (SCC), [1995] 3 S.C.R. 44 (S.C.C.), per Cory J., at para. 32).

The applicable measuringstick is that of “a reasonable person in similar circumstances” (see: Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec Inc, 2006SCC 12 , [2006] 1 S.C.R. 420 (S.C.C.), per LeBel J., at para. 15). The defences at common law identified above are codified insubsections 78.6(

a) and (

b) of the Act. 8. The Crown takes the position that Mr. Ross has failed to demonstrate due diligence on a balance of probabilities as examinedthrough the objective lens of the “reasonable person in similar circumstances” and relies heavily on the presence of feeding anddefecating seagulls to buttress this position. To the contrary, Mr. Ross takes the position that his actions in the circumstances in relationto the Atlantic Tomcod, though falling short of perfection, were indeed sufficient to successfully ground a due diligence defence. 9. Should the Crown succeed in convincing this Court that Mr. Ross committed the actus reus underlying paragraph 36(1)(

b) of theAct beyond a reasonable doubt and, further, should Mr. Ross be found to have failed to successfully advance one of the two defencesavailable to him in the circumstances, the corresponding penalty for Count #2 under paragraph 40(2)(

b) of the Act is a fine of not lessthan $5,000.00 and not more than $300,000.00. 10. It should also be noted that the Crown requested an opportunity to provide a post-hearing brief at the conclusion of trial. It did so on March 8th, 2023. Moreover, Mr. Ross was given an opportunity to file a reply brief, which he did on March 20th, 2023. The Court hasreviewed both briefs and takes this opportunity to thank the Crown and Mr. Ross for their thoughtful and thorough written submissions. THE EVIDENCE 11. The Crown called the following witnesses at trial: (

a) Dominique Benoit, Fisheries Officer (“Officer Benoit”), and (

b) Emmanuel Rousselle, Fisheries Officer (“Officer Rousselle”). 12. The Defence called the following witnesses at trial: (

a) Matthew Dalton (“Mr. Dalton”), and (

b) Mr. Ross. THE ISSUES 13. The issues that this Court must address are as follows: a. Has the Crown proved beyond a reasonable doubt that Mr. Ross carried out the actus reus of Count #2, which entails “leaving ordepositing or causing to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high and lowwatermark, remains or offal of fish or marine animals”?

b. If this initial question is answered in the affirmative, has Mr. Ross established one or both of the defences available to him on a balance of probabilities? Though not referred to as such, it is abundantly clear to this Court that Mr. Ross has indeed raised due diligence as a defence. THE EVIDENCE Officer Benoit’s Testimony 14 . Officer Benoit has been employed as a Fisheries Officer with the Federal Department of Fisheries and Oceans since 2000. He currently occupies the position of Field Supervisor and is based in Neguac, New Brunswick. 15 .

On March 3 rd , 2022, Officer Benoit and his partner, Officer Rousselle, were in the field conducting commercial smelt fishery inspections on the Gulf of St. Lawrence in or about the vicinity of Oak Point, New Brunswick. The purpose of such inspections is to ensure compliance with the Act , the regulations thereunder and the terms and conditions attached to each commercial smelt fishing license. 16 . On the date in question, three individuals and a snowmobile equipped with a sled were observed by Officer Benoit from a considerable distance out on the frozen surface of the tidal waters.

Officer Benoit testified that he and Officer Rousselle travelled on their snowmobiles to “within about 30 metres” of the three individuals where they saw a substantial quantity of Atlantic Tomcod on the surface of the ice immediately adjacent to the second of three smelt fishing ice cuts that had been made to accommodate a commercial smelt fishing box net. Officer Benoit testified that some of the Atlantic Tomcod were still flopping about on the surface of the ice while others were dead or close to death. 17 .

Much was made by Officer Benoit at repeated intervals during his testimony of the fact that he observed seagulls swooping in to scavenge this bounty of the sea all the while being further observed in some instances defecating on or near the Atlantic Tomcod as they entered and exited the area to feed. In other words, seagulls were seen doing what seagulls are universally known to do: eating, defecating and then eating some more when ready access to a food source becomes available to them.

It also bears mentioning that the only species of fish observed by Officer Benoit on the surface of the ice that day was Atlantic Tomcod. 18 . It was Officer Benoit’s evidence that after discovering the Atlantic Tomcod and observing their engagement with the local seagull population, he approached the three individuals who were working the last of three smelt fishing box nets about 30 metres away. Officer Benoit identified the three individuals, one of whom he knew to be longtime commercial lobster and smelt fisher, Mr. Ross. His two helpers were not known to Officer Benoit.

Officer Rousselle was instructed by Officer Benoit to review Charter rights and cautions with Mr. Ross. Suffice it to say there are no live Charter issues in this case. 19 . Officer Benoit asked Mr. Ross to produce his commercial smelt fishing license for inspection; however, Mr. Ross did not have it on his person. He did, however, have his Fisher’s Registration Card. Officer Benoit then turned his focus to the Atlantic Tomcod and asked Mr. Ross if he was responsible for having put them on the nearby ice surface. Mr. Ross responded “yes”. In view of this, Officer Benoit testified that Mr.

Ross was told he was “being arrested” for commercially fishing smelt without having his licence on his person and for “leaving the Tomcod on the ice”. 20 . After Mr. Ross was advised that he was being charged for leaving or depositing the Atlantic Tomcod on the ice, Officer Benoit testified that one of Mr. Ross’s helpers approached him and asked if he could return the Atlantic Tomcod to the water. Officer Benoit responded “yes” and surmised “some may have survived”.

There was no indication in evidence that the helper had approached Officer Benoit about returning the Atlantic Tomcod to the water further to instructions received from Mr. Ross. This detail became murkier on cross-examination when Mr. Ross asked Officer Benoit whether one of his helpers had asked him “what do you want done with the Tomcod?”, to which Officer Benoit responded they ought to be “returned to the water”, which resulted in them being “scooped back into the water” in the presence of Officers Benoit and Rousselle. 21 . Officer Benoit took three photographs that were marked as Exhibit C-1 at trial.

It was his evidence that the final two photographs accurately depict the Atlantic Tomcod as he discovered them in situ on the surface of the ice on March 3 rd , 2022. In the background of the second photograph, stakes for two of the three smelt fishing box nets are seen adjacent to their respective cuts in the ice. The Atlantic Tomcod pictured on the surface of the ice easily number in the hundreds and are closely spread out in a concentrated area with the exception of a few dozen that are loosely scattered about within a few metres.

A close examination of the final two photographs comprising Exhibit C-1 reveals no readily apparent evidence of the carnage visited upon the Atlantic Tomcod by the local seagull population, as described in the testimony of Officer Benoit. 22 . Asked on direct examination why he thought the Atlantic Tomicod were “discarded” on the surface of the ice by Mr. Ross, Officer Benoit explained that “there is no market for them”. In other words, Atlantic Tomcod are not a commercially viable fish. Mr.

Ross objected to the Crown’s repeated use of the term “discarded”, explaining that this was akin to stating a conclusion that the Crown was seeking the Court to reach in support of an essential element of Count #2 rather than being reflective of the realities of the situation as he saw them. 23 .

Further in his direct examination, Officer Benoit stated that commercial smelt fishers are “supposed to return Tomcod to the water and cause as little harm as possible to them”, only to later acknowledge that, incidental to a commercial smelt fishing licence, Atlantic Tomcod are considered a “legal bycatch” and, accordingly, a smelt fisher is fully entitled to keep any Atlantic Tomcod caught while fishing smelt.

This differs, for example, from other species of fish, such as Atlantic Salmon, which may also be found from time to time in smelt nets but, without exception, must immediately be returned to the water. 24 . Officer Benoit returned to his preoccupation with the feeding and defecating seagulls with the seeming implication being that Mr. Ross and/or his helpers ought to have maintained an Atlantic Tomcod vigil or perimeter and shood away all encroaching seagulls as a positive and necessary demonstration of due diligence. On further cross-examination, Officer Benoit acknowledged that despite the fact

that Atlantic Tomcod have little to no market value, they can indeed be frozen and used for bait at a later time. 25. Though Officer Benoit readily acknowledged that Mr. Ross had not left the area and was indeed close enough to collect the AtlanticTomcod at all material times, the spectre of the feeding and defecating seagulls was revisited by him for a third time before his testimonyconcluded. He noted that if the Atlantic Tomcod were going to be used by Mr.

Ross at a later time, even for baiting his lobster traps inthe fishing season set to commence the following month, that it would be “wrong to allow seagulls to eat them and defecate on them”.Asked whether he has observed the use of Atlantic Tomcod as a bait source in the lobster fishery in his 23 years of experience as aFisheries Officer, Officer Benoit responded “yes” but added “not often”. Officer Rousselle’s Testimony 26. Officer Rousselle has been employed as a Fisheries Officer since 2018.

His evidence dovetailed with that of Officer Benoit.Accordingly, I will only highlight the components of his testimony that further add to the Court’s understanding of what was observed by Officers Benoit and Rousselle on March 3rd, 2022 and, relatedly, what actions were taken as a result of their observations in the field.The testimony of Officer Rousselle focused primarily on his review of Charter rights and cautions with Mr. Ross. Turning to the AtlanticTomcod found on the ice adjacent to the second of three ice cuts made by Mr.

Ross to accommodate smelt fishing box nets, it wasOfficer Rousselle’s testimony this was the first time he had seen Atlantic Tomcod “spread out on the ice like that”. Mr. Dalton’s Testimony 27. Mr. Dalton testified that he was one of two helpers present with Mr. Ross on March 3rd, 2022 when Officers Benoit and Roussellearrived on the scene and pursued, inter alia, the issue of the Atlantic Tomcod found on the ice. He has been a helper to Mr. Ross foreight years.

While recognizing that Count #2 is a strict liability offence which does not have a mens rea element, the Court still notes forthe completeness of the record Mr. Dalton’s testimony that it was always the intention that day to keep and later use the Atlantic Tomcodfor bait and that they had been temporarily spread out on the ice adjacent to the second of three smelt fishing ice cuts to “flash freeze”before the three men hurried to empty the third net ahead of the rapidly changing tide. The priority focus of Mr.

Ross and his two helperswas, admittedly, to finish with their smelt fishing before collecting the Atlantic Tomcod from the ice surface rather than shooing awayseagulls. This, according to Mr. Dalton, would mark the second time that Atlantic Tomcod would be used by Mr. Ross to bait his lobstertraps, having experimented with the same bait source during a previous lobster fishing season. 28. On cross-examination, Mr.

Dalton estimated that the Atlantic Tomcod had been “out of the water” for 30-45 minutes and that theAtlantic Tomcod found in the first of three smelt fishing box nets had earlier been returned to the water because the yield from thesecond net was expected to be sufficient for bait needs relative to Mr. Ross’s available frozen storage space. Asked why this intentionwas not communicated to Officers Benoit or Rousselle at the time, it was Mr. Dalton’s evidence that they immediately leapt to theconclusion that what they observed was illegal and this proceeded in a singular, mission-focused manner. 29.

Returning to the feeding and defecating seagulls, the Crown asked Mr. Dalton “why was someone not taking care of the AtlanticTomicod?”. Mr. Dalton again reiterated that he, Mr. Ross and the other helper were fully occupied emptying the third net. In otherwords, all hands were on deck completing the smelt fishing a short distance away. Mr. Ross’s Testimony 30. Mr. Ross’s testimony aligned with that of Mr. Dalton and was also largely consistent with that of Officer Benoit. He has been acommercial fisher for over 30 years. He explained that at that particular site on the date in question, he had three smelt nets.

WhenOfficers Benoit and Rouselle arrived on the scene, Mr. Ross and his team: (1) had dealt with the first net, returning the Atlantic Tomcodfrom same to the water; (2) had dealt with the second net, having put the Atlantic Tomcod on the surface of the ice to “flash freeze” and,(3) was in the process of dealing with the third net while racing against the changing tide. 31. Turning to his intention to use the Atlantic Tomcod for lobster bait, Mr. Ross explained that these fish each measure between six andten inches and weigh between one half and three quarters of a pound. Mr.

Ross has 300 lobster traps and testified he experimentedsuccessfully with Atlantic Tomcod as a bait source during a previous season. This experimentation, he stated, was driven by two marketfactors pertaining to his usual bait source: mackerel. First, mackerel is becoming expensive and, secondly, it is also becoming moredifficult to source. It was also Mr. Ross’s evidence that he only had a limited amount of storage space in his freezer and that the quantityof Atlantic Tomcod from the second net would fill that space. 32. Mr.

Ross was adamant at all stages throughout the trial that he never “discarded” the Atlantic Tomicod when he left them on the iceand that they had been left on the ice for “about 30-35 minutes”. As for his recollection of seagull activity, it didn’t figure as prominentlyfor Mr. Ross as it did for Officer Benoit. He noted that seven to ten seagulls were seen hovering about in what he referred to as a“dynamic environment”. APPLICABLE LAW AND ANALYSIS The Presumption of Innocence, Credibility, Reliability and R. v. W.(D.) 33. Like every other person charged with a crime, Mr.

Ross is presumed innocent until the Crown has proven his guilt beyond areasonable doubt. The Crown bears the burden of proof throughout the entire trial. Mr. Ross need not present any evidence nor proveanything (see: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). 34. At paragraph 39 of Lifchus, Cory, J. described the standard as follows:

39 Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. 35. In R. v. Starr, [2000] S.C.C. 40, the Court described the level of proof as "much closer to absolute certainty than to ... a balance ofprobabilities." The burden remains on the Crown throughout. Proof of probable or even likely guilt, is insufficient. 36. In view of the fact that Mr.

Ross testified at trial, this case must be decided as a matter of law according to the principles set out in R.v. W.(D.), in which Cory J. provided a helpful analytical framework for deciding cases involving credibility. He stated: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must [still] acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 37. In another case, R. v. H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the British Columbia Court ofAppeal further supplemented the analytical framework offered by Cory, J. in R. v.

W.(D.) by offering the follow guidance: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. 38. In Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose leaf (Toronto: Canada LawBook, 2011) at 2521, the text states: It is useful to think of W.D. as a teaching on the correct process of reasoning about credibility.

It forbids two distinct lines of analysesbecause they are inconsistent with the accused’s right to the presumption of innocence until guilt is proven by the Crown beyond areasonable doubt. First, it is forbidden to reason that the accused’s evidence must be believed to secure an acquittal. The accused generally bears no burdenof proof and thus need not be believed on a balance of probabilities and certainly not on the highest standard of proof beyond areasonable doubt.

The second forbidden line of reasoning is for the trier of fact to think that the task of adjudication requires the trier of fact to answer thegeneral question of “What happened?” The problem with such a focus is that it creates a tendency in the trier of fact to search through theevidence looking for the truth and deciding whose evidence to believe, rather than searching for a reasonable doubt and giving theaccused the benefit of it. (emphasis added) 39. In R. v. Jones (1992), (QC CA), 74 C.C.C. (3d) 377 (Que.

C.A.) at pp. 379-380, Proulx, J.A. explains that whilethe search for and the determination of truth remain legitimate objectives for the trial judge, his or her role is nonetheless limited by thefundamental principles which govern the burden of adducing evidence and of persuasion. Because of the presumption of innocence,when the judge is confronted with contradictory versions, he or she does not have to decide which one of these versions is true.

Rather,the task of the trial judge is more acutely focused on determining whether the evidence as a whole raises a reasonable doubt, or whetherit satisfies him or her beyond a reasonable doubt as to the guilt of the accused. 40. Commenting specifically on Proulx J.A.’s analysis in the aforementioned decision, my colleague, Cloutier, P.C.J. (as he then was) ofthis Court, observed in R. v. I.J., 2018 NBPC 4 , 2018 NBPC 04 that “I would fine tune Justice Proulx’s comments in tworespects.

First, judges are not equipped with supernatural powers or favored with special insight allowing them to assess and rankcredibility. Second, the ultimate issue is not credibility but reasonable doubt”. 41. The corollary to this is that the trial judge need not decide who was telling the truth. The question, again, returns to the fundamentalquestion of whether the Crown has proven all of the essential elements of the offence beyond a reasonable doubt. 42. In assessing the evidence of Mr. Ross, I am entitled to consider it in the context of all of the other evidence.

In doing so, I am notonly permitted, but also encouraged, to compare the evidence of both the Defence and the Crown (see R. v. Mends, 2007 ONCA 669(Ont. C.A.) at para. 18 and R. v Carriere (2001), (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.)). 43. Making credibility findings is more art than science and cannot be reduced to a mechanical or formulaic exercise. A trial judge neednot deal with every piece of evidence in the context of reaching his or her credibility findings.

Credibility findings can be difficult toarticulate with precision, particularly when one considers the complex intermingling of impressions that emerge after the hearing of atrial: R. v. Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 20 and R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R.788 at para. 26. 44. At paragraph 41 of his unreported 2019 decision in R.v.

Bartibogue, my colleague, Gunn, P.C.J., provides an extremely helpful“non-exhaustive list of relevant factors in assessing credibility”, as is synthesized from the jurisprudential guidance of the Supreme Courtof Canada and the Court of Appeal of New Brunswick. This list is as follows:

a. the witness's opportunities for knowledge; b. the witness's powers of observation; c. the witness's judgment and memory; d. the witness's ability to clearly describe what has been seen and heard; e. How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions."; f. the cogency of the account; g.

Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable; ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie. h. Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other, though care should be taken not to put undue weight on this factor; i.

An absence of motive for the complainant to lie is relevant to the fact-finding process however, the trier of fact, must be careful to remember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into a reversal of the onus of proof; and j. The demeanour of the witness, though this is but one of the elements that enter into the credibility of the evidence of a witness and can be both an unreliable indicator of truth and fallible. 45 . It is also important to consider the reliability of a witness.

A witness may be found to be credible; however, that does not answer the question of whether the evidence he or she provided at trial is reliable. It is important for the trial judge to recognize and consider this distinction. 46 . As earlier noted, my colleague, Landry, P.C.J., recently had occasion in her unreported 2022 decision in R. v. Sherrard to consider whether the framework in R. v. W.(D.) applies in the context of strict liability offences. She found, rightly in my view, that it indeed applies to the assessment of the actus reus . 47 . In Nicholas v.

Hamilton (City), 2022 ONCJ 255 , the following observations were made at paragraph 6: “… In the context of strict liability offences, W.D. can only apply to the actus reus of the offence since the defence is required to prove due diligence on a balance of probabilities”. 48 . Similar observations were made at paragraph 28 in Brant (County) v. Vanboeckel , 2016 ONCJ 823 : 28. …Any evidence that the defendant provides to challenge the proof of the actus reus can and should be tested by applying the principles in R. v. W.(D.) .

In the event that the defence adopts proof of the actus reus but proceeds to rely on a defence of due diligence … then the principles in R. v. W.(D.) would not apply. 49 . In R. v. Keough , 2006 NLTD 142 , Newfoundland and Labrador’s equivalent of our Court of King’s Bench dealt with the issue of strict liability offences and, relatedly, the application of the R. v. W.(D.) framework in the context of a

summary conviction appeal. In that case, the court held that “[t]he actus reus of these regulatory offences was established by the facts agreed to by the Crown and the defence. The trial judge mistakenly applied the W.D. test to the defence evidence about due diligence.” At paragraphs 7 and 8, the court addressed the burden of proof applicable to the due diligence defence: 7. Strict liability offences were described by Dickson, J. of the Supreme Court of Canada in R. v. Sault Ste. Marie .

He made it clear that the Crown did not have to prove mens rea , but could rest after it had proved beyond a reasonable doubt that the accused had committed the “prohibited act”. The accused could “…avoid liability by proving that he took all reasonable care”. Dickson, J. called this the defence of due diligence and said “…it will be available if the accused reasonably believed 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 the particular event”. 8. The burden of proving due diligence is on a balance of probabilities. It is a positive onus and the accused will be convicted if hedoes not meet it. The doctrine of reasonable doubt applies to the first stage of the proceedings when the Crown bears the burden of proof,but it does not apply when the onus shifts to the accused. When the trial judge is satisfied that the Crown has proved the actus reusbeyond a reasonable doubt…he need take no further note of the standard. In fact, reasonable doubt plays no

part in the proceedings afterthat point and the trial judge would err in law to apply it to either the accused’s proof of due diligence, or overall of the proceedings. 50. Continuing at paragraphs 33 and 37, the court addressed the two-phase process for regulatory offence prosecutions: 33. …the Crown proves the actus reus beyond a reasonable doubt; and then the accused leads evidence that he exercised duediligence to avoid the offence. … 37. …the doctrine of reasonable doubt does not apply at that stage of the proceedings.

Reasonable doubt only applies to the firststage of the trial, but it (is) no longer available to (the defense) when the trial judge (has) confirmed that the Crown had proved the actusreus of the offences; it (is) not appropriate for the trial judge to assess the defence evidence against the W.D. test… The Application of R. v. W.(D.) 51. Having regard to the evidence pertaining to the actus reus of Count #2, it is clear that there is substantial agreement between the Crown and Mr. Ross as to what was observed on March 3rd, 2022.

It is not in dispute that, on that date, Officers Benoit and Roussellesaw a substantial number of Atlantic Tomcod which had been spread out on the surface of the ice by Mr. Ross near a cut that he hadmade to accommodate the second of his three commercial smelt fishing box nets. There is also agreement that when Officers Benoit andRousselle arrived on the scene, Mr. Ross and his two helpers were together working his third net a short distance away from the AtlanticTomcod. Some of the Atlantic Tomcod were dead or dying while others were still quite lively.

Some seagulls were observed in theimmediate vicinity swooping in for an easy meal of Atlantic Tomcod complete with the incidental defecation that accompanies thisactivity in what was clearly a dynamic external environment. 52. Neither Mr. Ross nor his two helpers were actively engaged in shooing seagulls away from the Atlantic Tomcod. At all materialtimes, a distance of approximately 30 metres separated Mr. Ross and his two helpers from the Atlantic Tomcod and, by the bestestimation, the Atlantic Tomcod found on the surface of the ice had been out of the water for a period of between 30 and 45 minutes.

It isalso agreed, as earlier noted, that Atlantic Tomcod is a “legal bycatch”. Accordingly, any Atlantic Tomcod caught incidental tocommercial smelt fishing pursuant to a valid licence, such as the one held by Mr. Ross, may be kept by the fisher. Unlike other identifiedspecies of fish, such as Atlantic Salmon, Atlantic Tomcod need not be returned to the water if caught in the context of commercial smeltfishing. 53.

These largely undisputed facts ground the position advanced by the Crown respecting the actus reus of Count #2 and, given theconsistency and overlap in these facts, the Court is not left with an evidentiary disconnect or delta that must be resolved in accordancewith the R. v. W.(D.) framework. In other words, there is not a live credibility contest at play in this case as it pertains to the actus reus.Of course, Mr. Ross notes that it was always his intention to keep the Atlantic Tomcod for bait. This, however, is not a factualconsideration that is relevant to the actus reus of Count #2. 54.

The locus of dispute regarding the actus reus does not stem from the underlying facts. Rather, it stems from the application of thelaw to those facts. In turn, this necessitates a detailed statutory

interpretation analysis respecting paragraph 36(1)(

b) of the Act as well asthe Act more generally. What

Interpretation is to be given to the terms “leave”, “deposit” and “bank of the water”? 55. The legislative scheme entrenched in the Act and the regulations thereunder is designed to steward one of our most precious naturalresources, thereby preserving it for generations to come. Indeed,

section 2.1 of the Act provides: “[t]he purpose of this Act is to provide aframework for: (

a) the proper management and control of fisheries, and (

b) the conservation and protection of fish and fish habitat,including by preventing pollution”. Commercial fishing is a highly regulated industry and there are innumerable compelling policyreasons underlying the strictures that Parliament has chosen to incorporate into the overall regulatory regime that governs same. 56. In R. v. Ulybel Enterprises Ltd., 2001 SCC 56 , 2001 S.C.C. 56 (S.C.C.), the Supreme Court of Canada made the followingpertinent observations about the interpretative approach to be taken to the legislative scheme comprising the Act and its associatedregulations at paragraph 24: 24.

It is convenient at this stage to provide some background to the Fisheries Act and the specific provision at issue in this appeal. The principal object of the Fisheries Act has been found by a number of appellate courts to be that as summarized by the Nova ScotiaCourt of Appeal in R. v. Savory (1992), (NS CA), 108 N.S.R. (2d) 245, at para. 14: The Act and the Regulations have been passed for the purpose of regulating the fishery; regulatory legislation should be given a liberalinterpretation.

A major objective of the Act and the Regulations is to properly manage and control the commercial fishery. (emphasisadded) This differs markedly from the much more restrictive approach to statutory

interpretation that applies to penal legislation such as theCriminal Code of Canada. If a penal provision is ambiguous owing, for example, to it having two reasonably available

interpretations,"that

interpretation which is more favourable to the accused must be adopted" (see: R. v. Goulis, (ONCA)). No suchrule of statutory

interpretation applies to the Act. 57. Building on these observations, there exists the central precept of statutory

interpretation that the words of a statute are to be read in

their entire context and in their grammatical and ordinary sense harmoniously within the scheme of the statute, the object of the statuteand the intention of Parliament (see, generally, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , 2002 S.C.C. 42(S.C.C.)). 58. Paragraph 36(1)(

b) of the Act provides as follows: Throwing overboard of certain substances prohibited 36(1) No one shall (

b) Leave or deposit or cause to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high andlow water mark, remains or offal of fish or marine animals. (emphasis added) 59. Paragraph 40(2)(

b) of the Act requires the imposition of a fine of not less than $5,000.00 and not more than $300,000.00 for a firstsummary conviction offence under paragraph 36(1)(

b) of the Act. 60. It is the Crown’s position that paragraph 36(1)(

b) of the Act makes it an offence to “leave” the “remains” of fish on the “bank of anywater”. The term “leave” is not defined in the Act. The Crown submits that the plain and ordinary meaning of that word, as set out inBlack’s Law Dictionary, includes “to put, place, deposit, deliver or the like”. Moreover, the Crown states that the acts of “leaving” or“depositing”, as those terms are used in paragraph 36(1)(

b) of the Act, ought not be conflated with or otherwise interpreted to include orrequire abandonment. The term “abandonment” is used in other sections of the Act, namely sections 34.2 and 60 thereof. Accordingly,the Crown submits that if it had been Parliament’s intention to include the act of abandonment in the wording of

section 36 of the Act, itwould have been clearly indicated. 61. Though no common law authority was identified providing guidance for a clear and specific

interpretation to be given to the word“leave” under the Act, the Crown pointed to the

summary conviction appeal decision of the Northwest Territories Supreme Court in R. v.Menecho, 2003 NWTSC 24 , 2003 N.W.T.S.C. 24 as “being dispositive” of the issue of whether to “leave” an object should, bynecessary implication, also include an intention to “abandon” the same object. The answer, of course, being “no”. In that case, theaccused had no intention to abandon his gill net, as can be inferred from his act of returning to recover it after it had been left uncheckedin the water for the better part of three months.

The fact that the gill net had been left unchecked for more than 72 hours was found to besufficient to discharge the Crown’s burden of establishing the actus reus of the strict liability offence beyond a reasonable doubt which,in turn, triggered an inquiry into whether the accused could demonstrate that reasonable steps had been taken to prevent the commissionof the offence and ultimately convince the court on a balance of probabilities that he had exercised due diligence. I reproduce below therelevant paragraphs of the

summary conviction appeal court’s reasons for decision: 2. The trial judge found that the events at issue had occurred; that is, that the net had been left in the water for more than 72hours, decaying fish were left in the net and the fish were wasted. There was evidence that the net belonged to the Respondent’s fatherand that the father, a brother and the Respondent had set the net in January.

The father had checked the net until the weather got cold,and the Respondent had pulled it in February but not since then until May, when he was observed by the fisheries officer in the act ofpulling it out with two other men. It was the officer s observation at that time that the Respondent appeared to be the leader of the group.The Respondent told the officer that he planned to give the fish to a dog team. ***** 5. As the trial judge recognized at the commencement of the trial, the offences with which the Respondent was charged are strictliability offences. As set out in R. v. City of Sault Ste.

Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.), for suchoffences the prosecution need only prove beyond a reasonable doubt that the defendant committed the prohibited act; the prosecutionneed not prove mens rea. The defendant has the burden of establishing on the balance of probabilities that he took reasonable care. ***** 8. There was, accordingly, evidence that the Respondent left the net in the water for more than 72 hours. Therefore, the burdenshifted to him to show on the balance of probabilities that he had taken reasonable care to ensure that the net was not left for theprohibited period of time.

Whether the Respondent was the owner of the net or directed the fishing expedition does not change hisparticipation in the doing of the act, although it may be relevant to the defence of due diligence. 9. For the reasons given, I find the trial judge erred in law and the acquittals must be set aside. The Crown s position initially wasthat convictions should be entered based on the evidence at trial.

It is apparent from the record, however, that because the trial judge wasof the view that the Crown had not proved its case, he told the Respondent, who was not represented by counsel, that he did not need tohear from him. The Respondent, who had indicated that he wanted to testify, did not take the witness stand. In the circumstances, therelief granted must be a new trial. (emphasis added) 62. In further support of its position that “leaving” does not import an accompanying intention to abandon, the Crown cites R. v. Bailey,[2003] N.J.

No. 347 (N.L.P.C.), where a fisher was found to have left his gill nets unchecked in water for more than 72 hours contrary tothe Act. At paragraph 45 of that decision, the court had this to say: 45 …The accused, as ship's captain and a licence holder, taking

part in a highly regulated industry, in this particular case, cannotexercise reasonable care that should come from his experience and training if he has not read or made himself fully aware of theconditions of his licence and the Fishery Act and Regulation under which he was operating. Under such a circumstance as a captain andlicence holder, the accused had the ability to influence or control the offending conduct from occurring. That is, the nets in this casebeing left in the water for 72 hours.

The accused could and should have read the conditions of his licence and been aware of theregulations under which he operated, and if he had, he should have put in place a plan or scheme to prevent any breach from occurring. In

other words, he could have quite easily eliminated the event from occurring. If the accused had known, and he should have known, in this case, if he had acted as a reasonable person, he could have, as he said himself, got someone to take the nets out of the water within the 72 hours. (emphasis added) 63 . Mr. Ross takes umbrage with the Crown’s reference to the decisions in R. v. Menecho and R. v. Bailey by focusing on the distinguishability of their facts.

He notes that he remained onsite and only 30 metres away from the Atlantic Tomcod in the instant case, whereas the fishers in each of those cases left their gill nets unchecked for several days in one case and several months in the other. The Court acknowledges this point but takes this opportunity to emphasize that the Crown relied on these two decisions strictly to assist its interpretative argument respecting the actus reus that “leaving” or “depositing”, as those terms are used in paragraph 36(1) (

b) of the Act , is neither akin to abandonment nor do those terms include or otherwise incorporate the added feature of abandonment as a prerequisite to establish the actus reus . 64 . Turning to the word “deposit”, as used in paragraph 36(1) (

b) of the Act , the Crown submits there is immediate clarity within the four corners of the Act relative to Parliament’s more opaque treatment of the word “leave”. This is so because subsection 34(1) defines the word “deposit” as meaning “any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing ” (emphasis added).

Similar to the Crown’s argument respecting the meaning to be given to the word “leave”, the Crown again notes that had Parliament intended the word “deposit” to include abandonment, such intention would have been expressly reflected through the incorporation of that word in the definition of “deposit”. It bears emphasis that the definition of the word “deposit” cuts a wide swath and expressly includes the neutral act of “placing”. 65 . In view of the foregoing submissions as it pertains to the

interpretation to be given by this Court to the words “leave” and “deposit” in paragraph 36(1) (

b) of the Act , the Crown is of the view that the very act of putting Atlantic Tomcod on the ice, regardless of Mr. Ross’s motivation or intention to later collect them, is sufficient to satisfy the actus reus of Count #2 beyond a reasonable doubt. 66 . This Court agrees with the Crown that the Act and its associated regulations invite a large and liberal approach to

interpretation pursuant to the direction of the Supreme Court of Canada in R. v. Ulybel Enterprises Ltd. Furthermore, the plain and ordinary meaning of the terms “leave” and “deposit”, as each are used in paragraph 36(1) (

b) of the Act , support the neutrally expressed act of “placing” the Atlantic Tomcod on the surface of the ice. It is undisputed in the evidence before this Court that this is precisely what Mr. Ross did despite his stated intention to later collect the Atlantic Tomcod after they were frozen. It bears repeating that the Crown is relieved in this case from proving mens rea beyond a reasonable doubt given that Count #2 is a strict liability offence. 67 . This Court also agrees with the Crown that the additional dimension of “abandonment” need not accompany the act of leaving or depositing the “remains” of fish.

Put another way, to establish the act of leaving or depositing the “remains” of fish does not also require a determination of whether those fish were abandoned by the fisher. To import an added component of this nature into the meaning of the terms “leave” or “deposit” would constitute, in my view, a misapplication of the applicable rules of statutory

interpretation and run contrary to the intention of Parliament for the reasons capably and thoroughly expressed by the Crown. It is also clear to this Court that the term “remains”, as used in paragraph 36(1) (

b) of the Act , includes dead fish. There is undisputed evidence before this Court that at least some of the Atlantic Tomcod were indeed dead when Officers Benoit and Rousselle arrived on the scene. 68 . The statutory

interpretation exercise required of this Court, however, does not end there because this Court is left to address and ultimately resolve the residual question of whether the specific area where the Crown says the Atlantic Tomcod were “left” or “deposited”, being the ice-covered surface of tidal waters immediately adjacent to a cut in the ice that was made by Mr. Ross to accommodate his fishing net, constitutes a “bank of any water” as that term is used in the Act . The term “bank”, like the term “leave”, is not defined in the Act . 69 . In support of its position that the area where Mr.

Ross put or placed Atlantic Tomcod constitutes a “bank of any water” within the meaning of paragraph 36(1)(b), the Crown brings the Court back to the overarching intention of

section 36 of the Act , which was enacted to “prevent remains of fish, decaying fish, or deleterious substances from entering water”. Focusing in particular on paragraph 36(1) (

b) of the Act , the Crown submits that it was the ineluctable intention of Parliament to ensure that the “remains or offal” of fish are not permitted to enter tidal waters. In looking further at subsection 36(2) of the Act , it is contemplated that the “remains or offal” described in subsection 36(1) of the Act may, for example, be buried above the high-water mark. This is so, says the Crown, because such action would not result in the return of such “remains or offal” to tidal waters. In other words, it reinforces the internal consistency of the Act . 70 .

Developing this argument further, it is the Crown’s position that the act of placing “remains” of Atlantic Tomcod on the surface of the ice immediately adjacent to an opening made to accommodate a fishing net means such remains could easily find their way back into tidal waters, which is an offence under

section 36 of the Act . There is a fairly profound degree of irony in this position given that the evidence confirmed the remains of the Atlantic Tomcod were returned to the water by Mr. Ross at the direction of Officers Benoit and Rousselle . Nonetheless, it is the position of the Crown that the aforementioned surface ought to be considered a “bank of any water” even though the surface where the Atlantic Tomcod were situated was frozen. The definition of “bank” in Black’s Law Dictionary includes “an elevation or mound of earth, especially one which borders the sides of a water course”.

Put another way, the land adjacent to a body of water. 71 . In J.D. Irving Ltd. v. Dowling , 2022 NBQB 114 , Morrison, J. stated the following at paragraph 38: “[d]etermination of a boundary by reference to a ‘bank’ may be synonymous with the edge of a river, thereby triggering the ad medium filum aquae rule.” The Crown submits that this decision, albeit a civil one, provides substantive assistance to this Court in interpreting terminology related to tidal and non-tidal waters and that the location where the Atlantic Tomcod were put in the instant case by Mr.

Ross should be interpreted “as the river’s edge, on the side of a watercourse”. In effect, to allow fishers to leave the “remains or offal” of fish on a frozen ice surface situated immediately adjacent to an ice cut made to accommodate a fishing net, says the Crown, would run counter to the intention of

section 36 of the Act if such a surface is not to be liberally interpreted so as to constitute a “bank of any water” as that term is used in paragraph 36(1) (

b) of the Act . 72 . Mr. Ross disagrees with the interpretative arguments of the Crown as it pertains to the meaning to be given to the word “bank of any water” in paragraph 36(1) (

b) of the Act . In reviewing his arguments, it is clear that he believes the Crown is stretching the plain and

ordinary meaning of this term beyond the bounds of credulity. Stated differently, it is Mr. Ross’s position that even the most large and liberal reading of the Act cannot permit a level of elasticity which allows the place where the Atlantic Tomcod were placed by him while he emptied his third fishing net to constitute a “bank of any water” for the purposes of paragraph 36(1) (

b) of the Act . 73 . This Court appreciates where Mr. Ross is coming from on this nuanced interpretative point but nonetheless accepts the position of the Crown. The overall context of

section 36 of the Act is important and drives the Court’s conclusion. The clear intention of

section 36 , when read on its own and then read further within the entirety of Act , is to prevent the return of fish “remains or offal” to tidal waters. The policy objectives underscoring same have already been discussed and will not be revisited. To adopt an

interpretation of “bank of any water” that would exclude the area immediately adjacent to a cut made in the frozen surface of tidal waters by a fisher to accommodate their licensed commercial smelt fishing activities, in my view, would work the effect of defeating the purpose of

section 36. It would lead to an absurdity if a fisher were precluded from depositing the “remains or offal” of fish overboard from a fishing vessel or placing same on the shore of tidal waters “between the high and low water mark” but could nonetheless leave “remains or offal” where Mr. Ross chose to in this case. For these reasons, this Court accepts that a “bank of any water”, as referred to in

section 36 of the Act , includes any area immediately adjacent to a cut in the surface of the ice on tidal waters made by a commercial fisher to facilitate smelt fishing pursuant to a licence issued under the Act . 74 . Given the largely uncontested evidence before this Court, as examined pursuant to the R. v. W.(D.) framework and, further, given the interpretative conclusions of this Court outlined above as it pertains to the meaning to be given to the terms “leave”, “deposit”, “remains” and “bank of any water” from a statutory

interpretation perspective, this Court concludes that the Crown has established the actus reus of Count #2 beyond a reasonable doubt. Has Mr. Ross successfully made out a “due diligence” defence? 75 . It now falls to this Court to determine whether Mr. Ross has successfully made out a due diligence defence on a balance of probabilities: an onus he acknowledges he bears. Mr. Ross has clearly raised this defence and submits that he is entitled to an acquittal on Count #2 based on same. 76 . In articulating his position further on the due diligence defence, Mr.

Ross highlights the fact that Atlantic Tomcod are a “legal bycatch” pursuant to his commercial smelt fishing licence and, accordingly, he was entitled to keep same. The Crown concedes this point. Mr. Ross adds that it was always his intention to keep the Atlantic Tomcod from the second net on March 3 rd , 2022 so they could later be used as lobster fishing bait and that neither he nor his two helpers ever ventured more than 30 metres from them at any time. 77 . Moreover, Mr. Ross notes that fishing occurs in a “dynamic environment”, not in a “closed controlled area”.

This means, in his words, that “fishers, and their catch, are exposed to the elements of nature, such as wind, precipitation, air temperature and sunlight, as well as other animals…” The dynamic environment that day included Mr. Ross and his two helpers fighting the changing tide to fish the third net in frigid conditions where a few seagulls were present. This, he states, lead to a choice being made, namely, to spread the Atlantic Tomcod on the surface of the ice to “flash freeze” while the balance of their smelt fishing work was completed.

The Crown characterizes this approach in a negative light as “an intentional and calculated decision to fish all his box nets before he tended to the fish left on the iced portion of the river” and adds that Mr. Ross was clearly “motivated by an economic incentive”. 78 . The “simple steps” that the Crown suggests would have constituted the exercise of due diligence in the circumstances, says Mr. Ross, far exceed the threshold required at law to successfully ground a due diligence defence. This assessment, as was earlier stated, is predicated on what “a reasonable person in similar circumstances” would do.

The implication arising from Mr. Ross’s submissions is that the “simple steps” suggested by the Crown are more evocative of a standard resembling perfection than due diligence. For example, the Crown suggests it would have been appropriate for Mr. Ross to have brought plastic tubs to the location with the Atlantic Tomcod being “packed, stored and covered from the aforementioned dynamic and live environment” and that positive efforts ought to have been made to protect the Atlantic Tomcod from the encroaching flank of hungry seagulls that were so vividly and repeatedly described by Officer Benoit.

The Crown went as far as suggesting that one of the helpers could or should have guarded the Atlantic Tomcod to protect them from being eaten and defecated upon by the seagulls. 79 . Mr. Ross further contends that the “simple steps” put forward by the Crown also entirely miss the point on a practical level.

This is so because the very act of spreading the Atlantic Tomcod on the surface of the ice to “flash freeze” was intended to ensure that they were frozen individually rather than in a “big clump”, which is the unwanted end that would have been achieved had they all been loaded together in plastic tubs only to later be placed in Mr. Ross’s freezer for a month to await their subsequent use as lobster bait. 80 . This Court must remain mindful that due diligence is measured by what “a reasonable person in similar circumstances” ought to have done. In examining this question, I conclude that Mr.

Ross indeed exercised due diligence in the circumstances based on the following considerations: a. The Atlantic Tomcod were removed from the second of three nets only and placed on the ice to “flash freeze”. The Atlantic Tomcod from the first net were, according to the undisputed evidence of Mr. Ross, returned to the tidal waters immediately. This speaks to Mr. Ross’s intention to only keep the quantity of Atlantic Tomcod for lobster bait that he had room for in his freezer. It also speaks to a mindfulness on the part of Mr. Ross to limit the exposure of the Atlantic Tomcod to the “dynamic environment”; b.

The Atlantic Tomcod constituted a “legal bycatch” under the terms of Mr. Ross’s commercial smelt fishing licence, meaning he was entitled to keep them and put them to whatever lawful use he deemed appropriate. Simply put, they were his fish. This differs, for example, from other species that must be returned to the water immediately, such as Atlantic Salmon;

c. While the Atlantic Tomcod were spread out on the ice, neither Mr. Ross nor his two helpers ever ventured more than 30 metres away from them. Yes, they were occupied emptying the third net. This prioritization, however, was reflective of the overall practicalities and “on the ground considerations” of the day rather than the more nebulous motives ascribed to Mr. Ross by the Crown. It was consistent, in my view, with what a “reasonable person in similar circumstances” would have done. d. The Atlantic Tomcod were on the ice for a total of 30-45 minutes, which included the period of engagement that Mr.

Ross and his two helpers had with Officers Benoit and Rousselle; e. The level and intensity of the seagull activity and the associated carnage that was said by Officer Benoit to have been visited upon the Atlantic Tomcod simply does not align with the aftermath as depicted in Exhibit C-1, leading this Court to conclude that Officer Benoit overstated what he observed in his testimony. 81 . This Court agrees with Mr.

Ross that the steps taken by him on March 3 rd , 2022 to protect the Atlantic Tomcod were, on a balance of probabilities, sufficiently in keeping with what a “reasonable person” would have done “in similar circumstances” to successfully ground a due diligence defence. This, in turn, constitutes a valid and complete defence to Count #2. CONCLUSION 82 . To summarize, I find that the Crown has established the actus reus for Count #2 beyond a reasonable doubt; however, Mr. Ross has marshalled a successful due diligence defence to this charge and is, accordingly, acquitted on same. Having disposed of Count #2 in Mr.

Ross’s favour, the Court will now quickly deal with sentencing on Count #1 in order to bring closure to this matter. Brittain, PCJ