R. v. Justin MacDonald, 2019 NBPC 7

PROVINCIAL COURT OF NEW BRUNSWICK 2019 NBPC 07 R. v. Justin MacDonald Before: Judge Alfred H. Brien At: Moncton, N.B. On: April 2, 2019 Counsel: Crown: Jillian E. Jordan Defence: James O’Neill REASONS ON DECISION Charge [ 1 ] The Defendant is charged with possession of lobster in a closed lobster fishing area (LFA) contrary to s. 57(1)(

b) of the Atlantic Fishery Regulations under the federal Fisheries Act . The specific charge is: That he, on or about the 27th day of October, A.D. 2016 in Lobster Fishing Area 36, at or near the Bay of Fundy, within Canadian Fisheries waters, adjacent to the Province of New Brunswick, did possess lobster in a Lobster Fishing Area (LFA) during the closed time set out in

Schedule XIV of the Atlantic Fishery Regulations 1985 SOR/8G21, contrary to s.57(1)(

b) of the Atlantic Fishery Regulations, supra, thereby committing an offence under

section 78 of the Fisheries Act, RSC, c.F-14. Applicable Statute Law [ 2 ] S. 43 (1) of the Fisheries Act reads as follows: The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations (

a) for the proper management and control of the sea-coast and inland fisheries; (

b) respecting the conservation and protection of fish;…………….. [ 3 ] S. 57(1) of the Atlantic Fishery Regulations 1985 reads as follows: 57

(1) No person shall, in a Lobster Fishing Area set out in column I of an item of

Schedule XIV, during the close time set out in column II of that item, (

a) fish for lobster; (

b) possess any lobster unless the lobster is being transported under the authority of a fish transporting licence issued under these Regulations; or (

c) subject to

section 58, have a lobster trap on board a vessel. [ 4 ] S.78 of the Fisheries Act R.S.C. reads as follows: 78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or (

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. [ 5 ] S. 78.6 of the Act establishes the defence of due diligence. It reads as follows: 78.6 No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence to prevent the commission of the offence; or (

b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent. Issues

[ 6 ] 1. Has the Crown proven beyond a reasonable doubt that the Defendant was in possession of lobster in a Lobster Fishing Area during a closed time? Given the admission of possession, whether the vessel, which he captained, was in a closed LFA. [ 7 ] 2.

If the vessel was in a closed LFA, was such a result of an innocent act, one to which due diligence would be a defence? [ 8 ] During the trial there were some admissions as follows: - The defendant was the captain of the lobster fishing vessel ‘Thankful Too 2014”, the subject vessel. - The defendant was licenced to fish lobster in LFA 35 - At the relevant time the adjoining LFA 36 was closed. [ 9 ] In argument - The defendant does not admit or acknowledge that his vessel was inside a closed LF A 36, at the time of the alleged offence - Further, should the Court find that the Crown evidence is sufficient to place the subject vessel in closed LFA 36, that he can rely on a due diligence defence Factual Background [ 10 ] On the date in question Fisheries Officers made an aerial surveillance over the Bay of Fundy.

They were going to patrol for a wide range of fishers. [ 11 ] The airplane was equipped with an inertial navigation system which was operated by a radar operator. This system had to be calibrated prior to starting a patrol. The system allows the plane, upon locating a fishing vessel, to fly over the top of the vessel and positively identify the location, latitude and longitude, of the vessel, accurate to 1 meter. A camera in the belly of the plane records this. [ 12 ] Also, on the plane was a Fisheries officer, a data manager and 2 pilots. The Fisheries officer (F.O.) directed the flight.

He had a LFA overlay showing the areas. He was positioned a few feet from the Data manager and received information from the data management system then operating, as to the location of vessels. He also could rely on visual sightings from the plane for this purpose. [ 13 ] The defence contends that there is some doubt about the accuracy of the results due in large part by the failure of the Crown witnesses to verify the calibration. This will be examined later. [ 14 ] On this date, on seeing the subject vessel, the F.O. directed that they determine the location of the subject vessel and in which LFA it was.

Using the equipment on board, the F.O. found that the subject vessel was inside a closed LFA 36. At the time he crosschecked this finding with the radar operator who, upon measuring the Lat/long lines confirmed that the vessel was inside LFA 36. [ 15 ] The F.O. also visually observed the vessel confirming it to be a operational lobster fishing boat. He saw crew members on the deck of the vessel, working on and handling lobster storage crates. He observed crew activity including taking a lobster out of a crate and throwing it overboard, banding, gauging, sorting and grading lobster from the hold.

Photos were taken of this activity. [ 16 ] The period of observation was 40 minutes. The FO observed that from the steady track on which the subject vessel appeared to be following, that it was steaming home to its home port of Alma, N.B. [ 17 ] Based upon this evidence the Crown alleges that the subject vessel was in a closed LF A [ 18 ] The Defence witnesses testified that on the day in question, the vessel had completed its fishing for the day and was steaming homeward when the pumps that pumped freshwater to the tanks where the lobster were held broke down.

Knowing that lobster can survive in the open air much longer than they can in water that does not have sufficient oxygen, all hands were on deck and the Defendant and crew were hastily emptying the lobster from the hold tanks to crates on deck. Accordingly it was this activity, conducted openly, which the F.O. observed when the DFO plane flew over the vessel.

This ‘emergent problem’ was unforeseen and required immediate attention. [ 19 ] During this period, which the Defendant described as ‘stressful’ for all on board, he did make periodic checks on the position of his vessel, including visible checks to ensure no potential collision with other vessels and visible checks of radar. He testified to the effect that he had no reason to believe that he was not inside ‘his zone.’ Issue No 1 [ 20 ] Has the Crown proven beyond a reasonable doubt that the vessel in question was in the closed LFA? [ 21 ] The defendant argues that the testimony of the DFO was seriously wanting.

He contends in argument that while the officer testified there was a margin for error built into the DFO navigational equipment, the officer’s testimony concerning the calibration of the equipment on the date in question was confusing and lacking in certainty. As a result, the defendant maintains that the Crown has not met it’s burden of proof [ 22 ] In response, the Crown, points out that in addition to the DFO officer’s testimony as to the location of the vessel, there was a second confirming opinion by David Richards, a radar/sensor operator.

Both have extensive experience and practical knowledge necessary to operate the sensing systems which they used that day. The Crown, in its brief, sets out the evidence upon which it relies as follows: “ Both David Richards and Officer Matheson had extensive experience and practical knowledge needed to operate the systems used to establish the location of the vessel. The Crown relies on the following evidence:

a. Before taking off, the plane stopped for four minutes to align the INS, that system finds its location and provides the operatorswith the corresponding coordinates. The operator knows the system is aligned when the system shows “NAV”, indicating it is preparedto navigate. b. In addition, the operators do their own verification, on two separate occasions, using two known locations before they takeflight. There are spots marked on the ramps and runway, these spots are used to check the system.

This further verification id completedonce while the plane is on the ramp and a second time by doing an on-top at the end of the runway, c. As per the policy of PAL, both verifications must be taken while the plane was within 0.04 miles of these known locations. Theplane was less than 0.04 miles from the known locations on both occasions on that day, and was therefore “within spec” and acceptableto commence. By the time the mission is started, three tests of the INS mapping system were completed. d.

At the end of the mission, another on top was done over the runway, in this case that verification was in spec (within 0.04 miles)as well. e. The reason for doing these three verifications was that the entire mission is based on the plane knowing where it is. Thoseknown reference points are then used during the mission as reference points for all other marks or Xs that become part of the mission. f. On six occasions during his testimony, David Richards stated that the INS system’s GPS readings were accurate to within ameter.

The INS, having located itself in accordance with known coordinates on the ramp and runway on three occasions during themission, was confirmation to the operators, further to “NAV” showed by the system on start up, that the system was accurately showingtheir location on that day.” [23] Further the Crown offers the following argument: If the evidence relating to the tolerance and accuracy of the system was unclear to the Court, the Crown states that thewitnesses were not called upon to establish the exact location of “The Thankful Too 2014”, but simply to establish that the Defendanthad lobster inside the closed LFA 36.

Even on the erroneous understanding by defence that the INS recorded locations with anaccuracy of 0.04 miles, the Defendant still possessed lobster in the closed LFA. At first measurement, he was found 907 meters insideLFA 36, using a margin of error of 0.04 miles (or 75 meters), he was still 832 meters inside the closed area at the time his locationswere recorded by Officer Matheson. [24] Lastly the Crown relies on the case of R. v. Gavin 2008 PESCTD 37 at paras 22-25 as follows: “18. Proving the offense relies entirely on the accuracy of the GPS equipment. The case of R. v.

Gavin 2008 PESCTD 37, dealswith the very issue that is before this court. At paragraphs 22-25 the court states: [22] .... It is very well established law that an expert may give evidence based on material which is widely used and acknowledged byexperts in that field ( R. v. Zundel (1987), (ON CA), 31 C.C.C. (3d) 97 at page 146, R. v. Terceira (1998), (ON CA), 123 C.C.C. (3d) 1 (Ont.C.A.) at paragraphs 37-39), without any need to lead evidence to support that material (R. v. Kim (2007), ONCJ 488, at paragraph 12).

Neither is there any need for an expert to be able to explain how the theory of thespecialized equipment works, providing he has practical knowledge to operate the system ( R. v. Grainger (1958), (ONCA), 120 C.C.C. 321 (Ont.C.A.).) [23] GPS is widely used and accepted. So much so that at least one Court of Appeal opined that GPS systems are so widely used andaccepted that it was open to a trial judge to admit GPS evidence as cogent evidence without the necessity of calling expert evidence(Wilgosh v.

Good Spirt Acres Ltd. (2007), Carswell Sask.168 (Sask.C.A.).) [24] What matters here is that there is some evidence upon which the trial judge could assess the accuracy of the GPS. In this case,there is plenty of evidence upon which a trial judge, acting reasonably and acting judicially could have concluded that the GPS readingswere accurate.

In addition to the evidence referred to above of Fishery Officer Rowe and Fishery Officer Belliveau, there is the evidenceof the expert for the Crown and the expert for the Defence that the GPS is accurate to within three to five meters. [25] It was open for the appellant to challenge the accuracy of the GPS readings, and the appellant attempted to do so. On theevidence adduced, it was not unreasonable for the trial judge to accept the accuracy of the GPS. It was also open for the appellant attrial to attack the accuracy of a specific piece of equipment.

For example, the appellant could have argued that a specific model of GPSreceiver was inaccurate. The Defence, at trial, did not do so. As was pointed out by the Crown, should a specific make or model ofequipment have been an issue, it was open for the Defence to make application to examine that equipment pursuant to the provisions ofthe Code, or to cross-examine the expert on relevant literature which might show a specific piece of equipment to be faulty and/or toenter such evidence through their expert witness.

They did not do so at trial, which left the trial judge in a position of having absolutelyno evidence before him that any specific piece of equipment was inaccurate. In fact, the only evidence the trial judge had in that regardfrom both experts was that the GPS was accurate to within three to five meters. At paragraph 4 of Gavin, one reads that the captain of the patrol vessel verified that the GPS was working properly by taking areading to confirm a known location.

The Appeal Court, referring to the trial judge’s reliance on how the fisheries officers took themeasurements and the evidence of the working GPS, found that he was acting reasonably and judicially in finding that the GPS readingswere accurate.” [25] In this case the Defendant did challenge the accuracy of the findings of the Crown witnesses on cross-examination, but did not do soby adducing evidence or making application to examine the equipment or adducing evidence regarding operation of the sensor systems

utilized. In testimony, the Defendant was unable to confirm the location of his vessel at the time of the alleged offence, that is to say hewas unable to testify that he was not in the closed LFA. While cognizant that there is no onus on the Defendant to prove his vessel’slocation, this does not then present as a case of competing versions on this point. Further he argues that there was the interference withhis GPS by the placement of the metal objects near the vessel’s navigation system causing his GPS autopilot to vary the course of hisvessel.

The inference being that it may have taken his vessel into the closed LFA without his knowledge. These two facts do notstrengthen his position that the Crown evidence is weak. [26] In furtherance to his argument that the Crown evidence can not be relied upon to establish that his vessel was in the closed LFA, theDefendant refers to the introduction by the Crown witness Richards of a ‘drifting’ factor. The specifics and impact of this factor werenot made clear.

The exchange in cross-examination about this factor does little to clarify or describe this factor and certainly does notaddress what, if any, impact such could or did have in the final opinion of the Crown witness as to the location of the Defendant’svessel. Acknowledging the existence of a ‘factor’ in calculations, even if unspecified, does not automatically , with nothing more,discount the opinion of the witness. If he acknowledges a ‘factor’ and took such into consideration, then a challenge with respect to thatmight require further questioning or further expert testimony.

As it stands, that tact was not taken by the Defendant who now argues thatregardless, the Crown’s evidence is not sufficient. [27] While there was some uncertainty observed by the Court of the testimony as to the exact location of the vessel with preciseaccuracy, the court nevertheless is persuaded by the argument of the Crown.

The verifications undertaken by the witnesses satisfy methat the systems used by them, even with the margins of error and tolerance to which they referred , were accurate for establishing thatthe vessel was in LFA 36. [28] Further I accept the reasoning in Gavin that there is evidence upon which this Court could assess the accuracy of the systemsutilized and accept it sufficient to establish that the vessel was inside the closed area. The actus reus has been established to the degreerequired to move to the second issue.

Issue No. 2 Law relating to Due Diligence [29] Both counsel referred to previous decisions of this court and the N.B.Q.B. in R. v. Kinghorne ([2002] N.B.J. 9 and 2003 NBQB341) and the Crown referenced R. v. Raymond 2006 NBPC 27. In the latter this court reviewed the law of due diligence and for thepurpose of addressing a point made by the Defendant as to

interpretation of the particular section, an excerpt might suffice at this point: [25] Due diligence is a term used in different types of statutes whether they be criminal, quasi-criminal or administrative and also isused in civil matters as well. It’s important to take the time to review exactly what it means in the context of

Section 78.6 of the Actbecause due diligence is specifically incorporated in the Fisheries Act. [26] s. 78.6 reads as follows: “No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence toprevent the commission of the offence, or (

b) reasonably and honestly believed in the existence of facts that if true would render thepersons conduct innocent.” [27] As Mr. Thorne pointed out, this Court had, in R. v. Kinghorne, reviewed the issue of due diligence, canvassing decisions of othercourts in the process and I am going to refer to findings that this Court has made on prior occasions. [28] The fault element for the offence under the Fisheries Act,

section 78 is negligence; an element which the Crown is not required toprove to the standard of beyond a reasonable doubt. In my opinion the law stands as follows; once the Crown proves the actus reus andmust do so beyond a reasonable doubt, the fault element of negligence is presumed unless the defendant can demonstrate that he tookreasonable care or acted under a reasonable mistake of fact. That standard of proof is on the balance of probabilities and that standard,or that proof, the onus lies on the defendant. [29] Mr. Thorne referred to the decision of R. v. D’Entremont, (NS SC), 1989 93 N.S.R. (2d) 250.in whichHaliburton, J looked at

Section 78.6 and considered what would appear on the surface as the two prongs in that section. Those twoprongs have been referred to and addressed by Mr. Cushing. Haliburton J. observed that those prongs are not entirely independent oneof the other but are intermingled.

He found that it was because the determination of the defendant’s reasonable or honest belief undersubparagraph (b), would be based on whether or not he or she used due diligence in forming such a belief when due diligence isreferred to in (a). [30] In D’Entremont, Haliburton, J. did state as follows at p. 255: “…It is clear that the defence depends upon the accused satisfying the court on a balance of probabilities of at least three criteria: 1. He made a mistake of fact; 2. That the state of facts upon which he relied would, if valid, have rendered him innocent; and 3.

That the holding of his belief resulted from circumstances which did not, in any way, arise from his own negligence.” [31] Haliburton, J. went on to state as follows; “…the defendant cannot satisfy these criteria, or successfully exculpate himself by reliance on employees or others associated with himexcept if he can establish that he had put in place a methodology of compliance and taken reasonable steps to ensure the effectiveoperation of that method.”

[32] With respect to this aspect of the intermingling of the two prongs and in an attempt to get to the critical issue that is provided underSection 78.6, other courts have looked at this defence of due diligence. [33] In Kinghorn v. R. 2003 NBQB 341, Glennie, J. did refer to three sources to which I am going to make reference as well. One is R.v. Alexander, (1999) (NL CA), 171 Nfld & P.E.I.R. 74 ( Nfld C.A.). It is subsequent to the decision of Haliburton J.but, in my opinion, it permits us to track that decision.

Glennie J. at para. 81 states: “The defence of due diligence requires the act of diligence to relate to the external elements of the specific offence that is charged. Theaccused must establish on a balance of probabilities that he or she took reasonable steps to avoid committing the statutorily-barredactivity. It is not sufficient to simply act reasonably in the abstract or to take care in a general sense” [34] The next source is found at paragraph 56 in Justice Glennie’s decision and it is a quote with respect to the publication by John Swaigen called Regulatory Offences in Canada, Liability & Defences.

Swaigen at pages 80 and 81 states as follows; “In strict liability offences a defendant must show that the mistake of fact is not only an honest one, but is also based on reasonablegrounds. To rely on a defence of reasonable mistake of fact, the accused cannot simply assert that he or she was unaware of the facts. Ifthe violation is a foreseeable result of his or her activities, the accused must usually show that he or she actually put his or her mind tothe problem, attempted to ascertain the true nature of the situation, and made all reasonable inquiries to that end.

In this respect, since there is an active, as well as a passive aspect to the defence, mistake of fact involves establishing due diligence. Toshow that a mistake of fact was reasonable, the accused must establish that he or she took all reasonable steps and made all reasonableinquiries to find out the correct information. As several courts have said, mistake of fact and due diligence are closely related, if not thesame, since both come down to the question of whether the accused exercised all reasonable care.” [35] The last source I am going to refer to from Justice Glennie’s decision is a reference from an

article by Professor Elaine Hughes inthe Journal of Environmental Law and practice, published in 1992. This extract is referred to in another Newfoundland case, R. v.Tavares,(1996), (NL CA), 144 Nfld. & P.E.I.R. 154. Professor Hughes noted; “However, in the strict liability context, the defendant’s mistake must not only be honest, but (using an objective standard) must also bereasonable.

To state the test another way, to establish lack of fault the accused must establish that he or she was honestly mistaken onreasonable grounds.” [36] Having accepted the approach of Haliburton J. and those sources I have referred to that followed thereafter, I return to one otheraspect of the standard for establishing a due diligence defence. Handrigan, J. of the Newfoundland Provincial Court in a decision of R.v. Strowbridge, [2001] N.J. No. 66 at paragraph 29 stated; “Due diligence or reasonable care are not passive states.

They contemplate action and will only be established where the accuseddemonstrates some measures to show that he has made an honest effort to comply with the statutory obligations on him.

Neither will befound where the accused is deliberately blind to things that should be addressed, or chooses to ignore factors that tell a prudent personthere is reason for inquiry and care.” Issue of Due Diligence: [30] For the purposes such will serve at this point, the Court is satisfied that all the witnesses, both Crown and Defence gave credible,straightforward evidence [31] Now, turning to the facts in this case, it appears clear from Section 57(1) of the Regulations that the onus is upon the captain of thevessel with a licence to fish lobster in an open LFA to ensure that his vessel is not within the proscribed adjoining LFA which is closedto fish or possess any lobster unless the latter is authorized by a transporting licence. [32] The question which could be asked in this case is as to how much tolerance of the actions of the Defendant should be permitted as aresult of an unforeseen ‘emergent problem’ aboard his vessel and thus what effect it would have in assessing his conduct and choice ofpriorities. [33] For that really is what is before the court.

Absent the ‘emergent problem’, presumably the Defendant, as captain, would not havebeen distracted with respect to the location of the vessel. [34] Note must be made of the fact that the Defendant, upon discovering the emergent problem, decided to continue forward motion. Itappears that he decided not to place the problem and its solution above his continued steaming to port. In essence, the ‘emergentproblem’ did not become the only priority.

It appears that he consciously determined that he could do both, handle the problem whilecontinuing steaming to port. [35] Contrast this with another type of unforeseen emergency on board a vessel, such as a life-threatening situation. [36] In my view the crux of the matter rests in the issue of how much effect an unforeseen ‘emergent problem’ aboard a vessel wouldhave on the standard of care and diligence which would be required of the Defendant to avoid conviction for the subject offence. [37] Having framed it as such, the court is satisfied as to the following: 1. The vessel was in the closed LFA 36. 2.

At that time the Defendant had possession of lobster which he had fished legally in LFA 35

3. At that time the Defendant was not fishing for lobster in LFA 36. Activities on board, as sighted by the Crown witnesses,appeared consistent with the crew handling the lobster in response to the emergent problem. 4. The ‘emergent problem’, caused by a mechanical failure, was not foreseen and threatened the cargo of lobster onboard the vessel 5. At the time of the ‘emergent problem’ the Defendant had set a course for his home port, a course he believed would keep hisvessel within the waters for which he had a licence 6.

At the time, through carelessness of a crew member or otherwise, and contrary to instructions of the Defendant, metal objectswere placed near the navigation system onboard. 7. The Defendant determined that the metal objects could interfere with the navigation system and cause the vessel to alter course 8.

Notwithstanding the ‘emergent problem’ being addressed, the Defendant continued the forward motion and direction of thevessel towards his home port. [38] Now, as to standard of care, the Crown set out in its brief it’s position as to the standard of care, namely: It is the Crown’s position that the Defendant has not satisfied the persuasive burden upon him to establish the high standard ofcare the law requires. The Crown relies on the following evidence of Justin Macdonald: a.

The Defendant testified that he set the system to steam home perpendicular to the line with LFA 36 and that would bring himvery close to the line. b. The pumps failed so he was focused on fixing the pumps and then focused on sorting through the lobster to make sure theyweren’t dying. He stated that he was concerned about his catch, fixing the pump, and not where he was. c. He acknowledges that his navigation equipment shows the zones, so if he is monitoring, he knows when he is entering a zone. d.

A substantial amount of time passed in which he didn’t verify his GPS coordinates in relation to the zones while he was goingthrough the lobsters and that he had lots of time to go back and forth to check those coordinates. Stating that it would have been simpleto go up to check the plotter and then go back to what he was doing on deck. e. When he came back up from fixing the pump, he set his tools down, looked around to make sure they weren’t going to hit anyboats and went back to help with the lobster, he did not check his GPS location in relation to the zones as it was not his top priority. f.

He did not check his equipment to determine exactly where he was for several hours. His estimates range from one to six hours. g. He does agree that when traveling close to a closed area that he should check to see where he is but that he did not do that onthe day in question.” [39] The Crown continued with its argument with respect to the standard of care as follows: “The Defendant and one of the crew present that day testified that there was a rule on the vessel that nothing was to be put inthe captain’s area; by the wheels, monitor and bench.

However, the Defendant, by his own admission did not take reasonable steps toensure the effective operation of that method. Not only did he not check to see where his vessel was over the course of several hours, hedidn’t check to see if anyone had put anything in his area during that same period of time. It can’t be said in this case that all reasonable steps to avoid being in LFA 36 had been taken. All the Defendant had to do wasto keep an eye on his equipment and he didn’t do so for a substantial amount of time.

A reasonable person, steaming home very close toa closed fishing area would have checked periodically to be sure they were not in that area. This was admitted by The Defendanthimself. “ [40] Putting aside the Defendant’s non-admittance that his vessel was in the closed LFA and his argument re his navigation system beingaffected as noted, it appears that he did not follow the course of conduct to which the Crown seeks to hold him. [41] The question then is what is the standard of reasonable care to be used in assessing the defence of due diligence. In R. v.

ShellCanada Limited 1999 ABPC 105 ( Alta Prov Ct) the Court took the position that it required a proportionality test or contextualapproach. [42] That position was affirmed in R. v. Karmali, [2001] A.J. No. 1627 ( Alta. Q.B.) where the court observed at para 27: What is reasonable and foreseeable at a particular time and place must be measured in light of the particular industry or activity andthat determination will be made on the basis of evidence at trial (R. v. Bata Industries Ltd., supra at p.358).

In determining theappropriate standard of care in the circumstances of a particular case the Courts have employed a proportionality test or contextualapproach. This approach involves considering various factors to determine what a reasonable standard of care is in the circumstances ofany particular case, including such factors as the activity being regulated, the risks involved, the likelihood of harm, the gravity of harm,any potential benefits, and the degree of knowledge or skill expected of the accused (R. v. Shell Canada Ltd. (27 October 1999), Calgary,1999 ABPC 105 , [1999] A.J. No. 1297 (Alta. Prov. Ct.

Crim. Div.) [unreported], and R. v. Gonder (1981), (YK TC), 62 C.C.C. (2d) 326 (Yukon Ter. Ct.). [43] Utilizing this proportionality test or contextual approach, the Court can review the following factors: [44] The activity being regulated. It appears fair to inquire as to what effect the Defendant’s failures, as outlined by the Crown, wouldhave, keeping in mind the objective of the legislation in question.

[45] The legislation sets out LFAs and a licencing scheme for waters under federal jurisdiction. [46] It would appear that the legislation prohibiting possession of lobster in a closed LFA, is to promote conservation, protection andregulation of lobster stock and fishing thereof. Such is pursuant to the regulative authority for the management, control and allocation offishery resources. The particular

section of the legislation here works on some clear presumptions to enforce such control. There wouldbe the presumption then that any fisher in possession of lobster in a closed LFA would have fished or taken them from that LFA. Therefore, a fisher, who is found in that LFA in possession of lobster, would be presumed to have breached the control mechanism set bythe legislation. So, in the situation here with the Defendant’s possession of lobster, it is the location of his vessel in the LFA, not the actof having harvested the lobster from that LFA, upon which the Crown seeks conviction. [47] The Risks involved.

The higher the risk that a fisher’s actions or lack of action could breach the legislative objectives, the higherthe standard of care and diligence is on the fisher to prevent such. Clearly, if the Defendant deliberately or through wilful blindness,entered the closed LFA and harvested and possessed lobster from the closed LFA ,such would have contravened the legislativeobjectives and put lobster stock at risk. However, simply being in the waters of the closed LFA for an innocent purpose would not doso. [48] However, at the critical time he was dealing with a serious emergent problem as noted.

This obviously distracted his attentionsomewhat, and he continued the forward motion of the vessel on a course he thought kept him in his licenced LFA relying on hisnavigation system and not performing other checks to ensure such. However, the risk he may have taken in lessening his vigilance as tohis vessel’s course, did not compromise the legislative objectives. It did however, upon detection of the location of his vessel, greatlyincrease his risk of being prosecuted, having to defend his actions in a court of law and possible conviction. [49] Likelihood of Harm.

Here again, the harm which the Defendant caused would be to the integrity of the control system forenforcement of the legislation. The LFA’s are in expansive waters which makes surveillance and detection of violations a challenge. Fishing vessels found in closed waters would need to be monitored. Detection of lobster fishing activity and proof for prosecutionpresent their own unique challenges. Accordingly, when a vessel such as the Defendant’s is found in closed waters clearly in possessionof lobster and with a crew handling lobster, the authorities are obligated to prosecute.

This requires time, money and manpower. [50] Gravity of Harm. There are numerous pieces of legislation , federal and provincial , which set out strict liability offences. Manyaddress situations where it is the actus reus which identifies the nature of the harm. Gravity of harm is usually established thereafter. For instance, offences alleging the depositing of deleterious substances in waters containing fishing habitat clearly identify the harm, andthe quantity of substance and the precariousness of the habitat affected would go to gravity.

In this case, by comparison, the gravity ofharm to the integrity of enforcement of legislative objectives could not be said to be significant. [51] Potential benefits. There do not appear to be any apparent benefits other than the fact that the Defendant was prosecuted andrequired to justify his conduct. Such should have a salutary effect on others. One might have considered the benefit to the Defendant inthat his being distracted allowed him to work with his crew to save his catch. [52] Degree of knowledge or skill expected of the Defendant.

If the Defendant was in possession of lobster taken from the closed LFAor had been fishing in the closed LFA, then the standard of care required to prevent such would have been very high indeed. TheDefendant clearly had the knowledge and skill to ensure his vessel did not enter the closed LFA for that purpose. The standard of caredelineated by the Crown would be in order, regardless of an emergent problem onboard his vessel or the problem with his navigationsystem.

His priority would have been to ensure that his vessel not enter the closed LFA. [53] However, as noted, at the time he was heading home with his legally caught lobster, distracted by the ‘emergent problem’ andrelying on his auto-pilot. He did make some checks as to the vessel’s position and was not deliberately blind to such. Considering thefactors noted above, in a contextual approach, such could be seen as lowering the standard of care required in the circumstances. Furtherthe point could be made that, as in the observation in R. v.

Courtaulds Fibres Canada (1992) (ON CJ), 9 C.E.L.R.N.S. 304 pg 313 “Reasonable care and due diligence do not mean superhuman efforts.” In this case the Defendant need not exercise‘superhuman’ effort to juggle the problems he confronted.

Conclusion [54] Considering all the above, and from the viewpoint of a reasonable man, was his action in responding to the unforeseen emergentproblem to the point of having inadvertently crossed over the line of the subject LFA, carelessness and negligence which should attractconviction? [55] In the Court’s opinion, it should not. [56] The Defendant reasonably and honestly believed that his vessel was on a course which kept him out of the closed LFA. Thedistraction and navigation problems were unforeseen. There was no real risk or harm to the legislative objectives.

In assessing that, thecourt is satisfied that, on a balance of probabilities, he exercised the due diligence which the unique circumstances at the time required ofhim. [57] It bears repeating that, absent the facts that the Defendant neither intended to nor fished in, nor had possession of lobster from theclosed LFA, together with the facts of the emergent problem and navigation system problem, the Court’s position would not be the same. [58] In this case the Defendant is found not guilty. ______________________________ Judge Alfred H. Brien