r v. Bobby Etheridge, 2021 QCCQ 13100

R. c. Etheridge 2021 QCCQ 13100 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MINGAN TOWN OF BLANC-SABLON Regulation and Statutory Division No: 652-73-000947-197 DATE: October 26, 2021 ______________________________________________________________________ PRESIDING : THE HONOURABLE VICKY LAPIERRE, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutor v.

Bobby Etheridge Defendant ______________________________________________________________________ REASONS FOR JUDGMENT ______________________________________________________________________ [ 1 ] Bobby Etheridge is charged with the following offence: On fishing trip of June 2, 2019, in crab zone 15, in Canadian fisheries waters adjacent to the Province of Quebec, judicial district of Mingan, when carrying out activities under the authorization of the commercial snow crab licence [...] for the fishing season 2019, fail to comply with a condition of the said licence to wit by note ensure that the VMS unit was fully operational, activated and in use for the entire fishing trip, contrary to section 22(7) of the Fishery General Regulations SOR 93-53 and amendments, committing thereby a

summary offence and rendering himself liable to the fines provided for in

section 78 of the fisheries Act, R.S.C. and amendments. [ 2 ] The defendant, Bobby Etheridge, is a substitute operator for a commercial fishing licence initially hold by Wesley Etheridge. According to P-2 , Bobby Etheridge had from April 26, 2019, to December 31, 2019, a temporary authorization to fish snow crab. [ 3 ] This temporary authorization states that: The licence holder and/or substitute operator must conform to commercial fishing acts and regulations which includes conditions mentioned on above mentioned holder’s licence(

s) under the threat of prosecution. [ 4 ] The fishing vessel Sherry and Travis was operated by the defendant for his commercial fishing activities. The defendant is not the owner of the Sherry and Travis vessel. In fact, the owner of the vessel appears to be Philip Osborne [1] , father-in-law of Marc Lavallée, fishery officer (Officer Lavallé

e) and witness for the prosecution. [ 5 ] The conditions of the licence of 2019 include specifics about the vessel monitoring system (VMS).

Section 11 of the said licence states as follows: 1. The licence holder/vessel operated is prohibited from :

a) fishing under the present conditions of licence unless a Fisheries and Oceans Canada approved VMS unit has been installed on board the fishing vessel identified in

section 1;

b) subject to paragraph

(3) c) fishing under these conditions of licence without a VMS unit communicating the information specified in subsection (4);

c) altering or tampering with the VMS unit or its operation;

d) destroying, disposing of, or removing the VMS unit or associated records or storage media;

e) emitting or causing to be emitted any electronic or electric signal that renders the VMS unit inoperative or ineffective;

f) interfering with or block any signals required by the VMS unit to gather, record, or transmit information; 2. The licence holder/fishing vessel operator must :

a) complete and submit, at least two (2) working days before the beginning of fishing activities, the National Vessel Monitoring System (VMS) Form to the VMS coordinator at the address listed on the form at the time of : (

i) the initial installation; (ii) the replacement or transfer of a VMS unit.

b) ensure that the VMS unit is fully operational, activated and in use for the entire fishing trip. 3.

a) Should the VMS unit become inoperative or malfunction in any way, the licence holder/fishing vessel operator must cease fishing immediately and contact the VMS coordinator at 1-418-937-8053 from Monday through Friday between 08:00 and 16:30 (Eastern Time Zone) or after these hours to the Operations Centre of the Catch Certification Program at 1-888-641-6464 and provide the following information: (

i) the date and time; (ii) the fishing vessel name and VRN; (iii) the name of licence holder/fishing vessel operator; (iv) the species sought and fishing area; (

v) the estimated quantities of fish in rounded weight by species that have been retained on board and fishing vessel; (vi) the estimated date and time of arrival at port; (vii) the landing port; (viii) the cellular or satellite telephone number to reach the fishing vessel.

b) Once the VMS unit is restarted and is fully operational, the licence holder/fishing vessel operator is authorized to resume and complete his current fishing trip.

c) Notwithstanding paragraph (1)b), the licence holder/fishing vessel operator who has obtained an authorization from a fishery officer may resume and complete his current fishing trip. 4. The licence holder/fishing vessel operator must ensure that the VMS transmits the following information to Fisheries and Oceans Canada every 15 minutes:

a) the date and time;

b) the fishing vessel’s geographical position (latitude/longitude), and the particular time and date associated to that position;

c) the VMS communication service provider (CSP) number for the VMS unit. Notice : The licence holder/fishing vessel operator may verify the accuracy of the information transmitted to Fisheries and Oceans Canada by either communicating with his service provider or the VMS coordinator at 1-418-937-8053 from Monday to Friday between 08 :00 and 16 :30 (Eastern Time Zone). « I underlined clauses (1) b),

(2) b) and (4) c). » [ 6 ] The prosecution’s evidence reveals that on June 2, 2019, the defendant was at sea in zone 15 on the Sherry and Travis for snow crab fishing in Kegaska area, between 5:00 am and 2:57 pm.

The purchase slip reveals that the crab was sold to Baie-Trinité Seafood Ltd. that day [2] . [ 7 ] According to Officer Lavallée’s testimony and to a VMS’s document [3] , on June 2, 2019, the Sherry and Travis was not reporting any position to the Department of Fisheries and Ocean Canada (DFO). [ 8 ] The Sherry and Travis was not reporting any position to DFO even if a VMS unit was installed on board by its owner (Philip Osborn) with an effective date of action reported to DFO on June 6 , 2018 [4] . [ 9 ] Officer Lavallée explains that the VMS has to be activated to be functioning.

On June 2, 2019, the VMS on the Sherry and Travis was not activated. He discovered that information as he was investigating the file. He explains that DFO was not receiving a signal from the Sherry and Travis . The reason is because the forms that needed to be sent to DFO were not, so the VMS was not activated. Each VMS as its own number. Sending the forms to DFO, including its number, is a way of linking the VMS to DFO. When the VMS is linked to DFO, it transmits a signal from the vessel to DFO every 15 minutes. [ 10 ] To activate the VMS, the fisherman has to send a form to DFO by fax or e-mail.

In this case, according to Officer Lavallée’s testimony, the forms were not sent to DFO. It explains why DFO was not receiving any signal from the Sherry and Travis . [ 11 ] Officer Lavallée has been working for DFO for 17 years. The VMS system is used commonly. On 60 vessels, it is a system that works well. He emphasis that the fisher or owner has the responsibility to ensure that the VMS unit is fully operational, activated and in use for the entire fishing trip. The fact that the Sherry and Travis is a lease in this case does not make a difference.

[ 12 ] Officer Lavallée is not familiar with the functionality and technology of the VMS. For example, he can’t tell what would indicate to the operator of the vessel that the VMS unit is not working, as a coloured light. His job is to verify that DFO receives a signal for each vessel. He also verifies if the proper forms were sent to DFO. [ 13 ] Officer Lavallée do not recall receiving a phone call from Philip Osborne, owner of the Sherry and Travis , but he is aware that Philip Osborne is an experienced fisherman who knew that the VMS unit needed to be activated.

Otherwise, officer Lavallée can’t recall about the functionality of the VMS of the Sherry and Travis , regarding events that could have happened on May 27, 2019. [ 14 ] The defendant had called Gary Etheridge as a witness. He is a fisherman and operated the Sherry and Travis on May 27, 2019. He had a sea observer designated by DFO on board. He did not pay much attention to the VMS unit of the vessel at that time. He is charged with the same kind of infraction as the defendant is in this specific case.

Issue in dispute: [ 15 ] Did the prosecution has proved the actus reus of the charge, beyond a reasonable doubt, meaning that the vessel, the Sherry and Travis , was not monitored by DFO by the use of an approved VMS monitoring system, on June 2 , 2019, contrary to

section 11 of the defendant’s fishing licence, as a substitute operator? [ 16 ] If yes, did the defendant proved on the balance of probabilities that he took all reasonable care to respect the conditions of his licence herein that the Sherry and Travis was monitored by DFO, by the use of an approved VMS motoring system on June 2, 2019? Position of the parties: [ 17 ] The prosecution alleges that the defendant did not establish on a balance of probabilities that he has a defence of reasonable care.

For the prosecution, the VMS of the Sherry and Travis was working but the defendant did not advise or sent the forms to DFO. Consequently, the VMS was not fully operational and its position was not reported to DFO, on the date of the infraction. [ 18 ] The fact that the VMS of the Sherry and Travis was not fully operational since May 27, 2019, is not relevant for the prosecution even if a DFO designated sea observer was on board. [ 19 ] The defendant alleges that the fact that the VMS of the Sherry and Travis was not fully operational should have been known by DFO.

He pleads that given the fact that a signal has to be transmitted every 15 minutes, they should have known that there was no signal since at least May 27, 2019. Consequently, DFO should have stopped the Sherry and Travis, particularly because there was a DFO designated sea observer on board at some point. [ 20 ] He finally argues that he had the information that Philip Osborne, the owner of the Sherry and Travis, advised him that all the required forms were sent to DFO. So, he did not think he had to do much to make sure that the VMS was fully operational.

The Court emphasizes on the fact that this last part, regarding Philip Osborne, was not introduced in evidence and was argued by the defendant at the end of the trial. In fact, after being questioned by the Court on that specific point, the defendant made the choice not to testify at his trial. Analysis: [ 21 ] Did the prosecution has proved the actus reus of the charge, beyond a reasonable doubt, meaning that the vessel, the Sherry and Travis , was not monitored by DFO by the use of an approved VMS monitoring system, on June 2, 2019, contrary to

section 11 of the defendant’s fishing licence, as a substitute operator? [ 22 ] The Court answers this question by the affirmative. [ 23 ] The defendant, a substitute operator of a snow crab commercial fishing licence, had the obligation to conform to commercial fishing acts and regulations which includes conditions mentioned on the holder’s licence [5] . [ 24 ] In this case, the specific condition of the licence in litigation is to ensure that the VMS unit was fully operational, activated and in use for the entire fishing trip.

The Court refers to section 11(2) and (4) of the conditions of licence for snow crab fishing in area 15 in 2019 [6] . [ 25 ] Furthermore, the defendant, as a fishing vessel operator, had to ensure that the VMS was transmitting the following information to DFO every 15 minutes:

a) the date and time,

b) the fishing vessel’s geographical position, and the particular date and time associated to that position and

c) the VMS communication service provider number for the VMS unit. [ 26 ] On that point, officer Lavallée’s testimony is clear. He is supported by a report regarding the VMS unit of the Sherry and Travis for the specific day of June 2, 2019.

At that date, the Sherry and Travis did not report any position as it should have. [ 27 ] For the 2019 fishing season, DFO did not receive any forms or communication from the defendant to ensure that the VMS unit from the Sherry and Travis was activated and in use for the entire fishing season. [ 28 ] That being explained, the Court concludes, on that first question, that the prosecution has met its burden of evidence beyond a reasonable doubt regarding the actus reus of the said infraction. [ 29 ] It is important to note that the offence before the Court is a strict liability offence and not an absolute liability offence.

As such, due diligence is a defence. [ 30 ] Did the defendant proved on the balance of probabilities that he took all reasonable care to respect the conditions of his licence herein that the Sherry and Travis was monitored by DFO, by the use of an approved VMS motoring system on June 2,

2019? [ 31 ] The answer to this question is negative. In fact, the Court does not have much information about due diligence. The defendant chose not to testify at his trial. [ 32 ] Gary Etheridge did testify for the defendant. From his testimony, he introduces the fact that the VMS unit from the Sherry and Travis was malfunctioning on May 27, 2019. He was on board at that date, as was a sea observer designated by DFO.

That does not help the Court to state the burden of the defendant on due diligence to be proved by the balance of probabilities. [ 33 ] About that burden, the defendant chose not to bring evidence of his own. The prosecution’s evidence reveals that a VMS unit was installed on the Sherry and Travis at the date of the alleged infraction. But that VMS unit was not activated and was not reporting any position of the vessel to DFO on June 2, 2019. [ 34 ] The Court is aware of the fact that the defendant was using a vessel that was the property of a third party (Philip Osborne).

That does not cancel or modify the conditions of the commercial fishing licence that the defendant had to respect during 2019 fishing season. The Court refers specifically to

section 11 of the said conditions regarding the VMS unit [7] . [ 35 ] The defendant did not introduce any evidence about what was done to ensure that the VMS unit was fully operational, activated and in use for the entire fishing trip. Did he ask for information about the installer? Did he contact DFO or asked someone to do so to ensure that the VMS unit was operational? Did he send an e-mail, a fax or a letter to DFO to make sure that the VMS unit was activated?

The Court can’t answer those questions because none of that was introduced into evidence. [ 36 ] The present case can be distinguished from the decision Shawn Ralph v. Her Majesty the Queen in Right of Canada [8] . In that case, the Supreme Court of Newfoundland and Labrador overruled the decision of the trial judge because he erred in not finding Captain Ralph exercised due diligence on a standard set out in the case law of a reasonable person looking at the facts objectively. In fact, in that case, the evidence revealed that the VMS unit system was fully operational at all time after it was installed.

Captain Ralph had it installed by a professional installer for fishing and accepted by DFO.

The evidence, which was not contradicted, was that the form with the relevant information was sent to DFO by ordinary mail from Catalina by Captain Ralph and also faxed by the installer on two separate occasions by fax at the number noted on the form. [ 37 ] No such actions or positive steps were introduced into evidence by the defendant to meet his burden on due diligence by the balance of probabilities. [ 38 ] For all these reasons, the Court comes to the conclusion that the prosecution met its burden of evidence beyond a reasonable doubt regarding the actus reus of the said infraction.

The defendant did not meet its burden on due diligence by the balance of probabilities for this strict liability offence. [ 39 ] The Court finds the defendant guilty of the charge. The case is postponed to January 17, 2022, in Blanc-Sablon, for the sentencing hearing. __________________________________ Vicky Lapierre, j.c.Q. M tre Luc Dion For the prosecution Mr. Bobby Etheridge Defendant Date of hearing: August 24 th , 2021