R. v. McDonald, 2019 BCPC 389

Citation: R. v. McDonald 2019 BCPC 389 Date: 20190924 File No: 63950-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. STEWART LAWRENCE MCDONALD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Langlois-Sadubin Appearing on his own behalf: Stewart McDonald Place of Hearing: North Vancouver , B.C. Dates of Hearing: Dec 17, 2017; Mar 25, Jun 26, Sep 24, Dec 23, 2019 Date of Judgment: September 24, 2019 A Corrigendum was released by the Court on November 2, 2021.

The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT : These are my reasons following a trial on the matter of Stewart Lawrence McDonald. [ 2 ] Mr. McDonald is before the Court facing two counts under the Fisheries Act . The first count alleges that on May 30 th , 2016 he

did unlawfully place or set fishing gear, specifically prawn gear, in waters during a closed time, contrary to s. 25 of the Fisheries Act and committed an offence in contravention of s. 78(

a) of the Fisheries Act. The second count alleges that on the same date, May 30th, 2016he did unlawfully fish for prawns by trap during a closed time, contrary to s. 63 of the Pacific Fishery Regulations 1993 and did therebycommit an offence in contravention of s. 78(

a) of the Fisheries Act. [3] The Crown called three witnesses: two Department of Fisheries and Oceans officers and one expert from the Department of Fisheries and Oceans. Officers Jackson and Pye were on duty on May 30th, 2016. They received information that on May 29th possiblefishing activity in a closed area near Anvil Island in Howe Sound had occurred. The area was closed as it is sensitive habitat for glasssponges. The data that was received was consistent with bottom contact fishery, specifically prawn or crab traps or halibut fishing. [4] On the 30th they were dispatched to investigate.

They left the Steveston office in Richmond, in their Zodiac. The Zodiac wasequipped with GPS plotter. Both officers confirmed the plotter was operational when they set off and were able to also confirm it wasoperating appropriately because they could see where they were. [5] The information that had been received was from the Vessel Monitoring System, which tracked vessel's licence to fishcommercially. The data identified the vessel as the Lormax which was registered to Mr. McDonald as a licenced commercial prawnvessel.

That data showed the vessel to have been within the closed area for 45 minutes, and that it followed a V-shaped path in and outof the closed area. [6] At 14:49 hours the officers arrived at the closed area. They found two buoys just outside the closed area consistent with wherethe VMS data indicated the vessel had entered and left the closed area. The buoys were prawn buoys and were marked with the vesselnumber associated to the Lormax.

Officer Jackson said they were unusually close together for a commercial prawn trap line, but that theV-shaped pattern was not contrary to any regulations. [7] The officers powered off their engine and began pulling in the traps. The lines of the traps appeared to be vertical in the water aseach trap was hauled to the surface. The traps were baited. The officers plotted their movement on their GPS by entering way pointsfrom time to time. Their path of travel took them well inside the closed area and back out again to the buoy at the end of the trap line. Thirty-three traps were located inside the closed area.

The officers took photos of the buoys and traps and of their GPS plotter as theyproceeded after locating the buoys until they left the area. Any prawns in the traps were returned to the water. [8] Constable Pye spoke to the closure and variation notice, and the details of the coordinates and dates of that closure. That noticewas disseminated on the DFO website. He also confirmed that the GPS spotter was working properly. The officers did not take steps todetermine the distance from the boundary of the closed area to the trap furthest inside the closed area.

It was a calm, sunny day and theywere unaware of the tides. They relied on their GPS tracker data to tell them where the closed area was and where they were in relationto it. [9] Officer Kattilakoski has been with the DFO since 1994. He is now a Fisheries manager.

He was qualified as an expert, able togive opinion evidence in the area of electronic monitoring equipment operation and functioning, computer program operation and datainterpretation of electronic monitoring data received by indices engaged in the commercial prawn fishery in British Columbia includingthe vessel, Lormax. [10] He spoke to the various kinds of data and mapping systems used by the DFO, including the vessel monitoring system which is atransponder located on the vessel which sends a signal every 15 minutes to a satellite, and that data is then communicated to the GlobalPositioning System. Mr.

Kattilakoski hand entered the coordinates for the closed area to ensure accuracy. He determined they were the same as that set out in the GPS plotter referenced by Officers Jackson and Pye on May 30th, 2016. He also said that GPS is generallyaccurate to within a few metres. [11] Officer Jackson confirmed he had been issued a ticket in 2018 for taking a fur-bearing animal out of season in Prince EdwardIsland. That charge came to the Crown's attention and was disclosed to Mr. McDonald.

The officer explained that he was lawfullyattempting to track muskrat and mink; however, a river otter which are not common in the area and which he had no expectation wouldend up in one of his traps, was, in fact, found in one of his traps and unfortunately died. [12] The evidence of the officers was consistent one to the other and with the data from the VMS and GPS system. They had not hadany prior dealings with Mr. McDonald. I accept their evidence as reliable and truthful. [13] Mr.

Kattilakoski identified various maps with the closed area, the VMS data showing the Lormax going in and out of the closedarea and its path to and away from the closed area and the path of the DFO vessel with Officers Jackson and Pye on board. Mr.Kattilakoski agreed that he relied on the data and the maps to conclude the Lormax had been in the closed area and from its track and thetime spent was engaged in fishing activity. Mr. Kattilakoski was a forthright and reliable witness with a clear command of his area ofexpertise. [14] Mr.

McDonald elected not to call evidence for the defence or to make submissions at the end of trial. The Crown's case againstMr. McDonald, the person licenced to operate the Lormax as a commercial prawn vessel, is circumstantial. The body of evidence beforeme is consistent with guilt and there are no other plausible theories or reasonable possibilities which are inconsistent with guilt. See R. v.Villaroman, 2016 SCC 33 , 2016 S.C.C. 33. [15] Mr. McDonald's suggestions that the tide or wind could have resulted in the VMS or GPS data being in error were not agreed toby the witnesses.

There is no evidence to suggest these systems malfunctioned, or that the equipment used was of such poor quality itcannot be relied on. I find that the setting of baited prawn traps on a line which were then sunk to sit on the bottom constitutes fishing. See R. v. McKinnell Fishing Ltd., 2016 BCCA 472 , 2016 B.C.C.A. 472. [16] The offences before the Court are strict liability; therefore, an accused may absolve himself on proof that he took all the carewhich a reasonable person might have been expected to take in all the circumstances. See R. v. Chapin, (SCC), [1979] 2

S.C.R. 121. There is no evidence before the Court to suggest that Mr. McDonald took all reasonable care to ensure that he was notfishing in a closed area. [17] I find that there is evidence from both officers, supported by photographs that their GPS data plotter was functioning properly. Thus, the Court may rely on the VMS and GPS data, which has been entered in the form of charts and maps, as being accurate andreliable. See R. v. Dorgan, 2008 PESCTD 37 , 2008 P.E.S.C.T.D. 37. [18] I find the Crown has proven the guilt of Mr. McDonald with respect to both offences beyond a reasonable doubt. Mr.

McDonald,if you will please stand? So I find you guilty of both of these counts. You may be seated. (REASONS CONCLUDED) CORRIGENDUM - Released November 2, 2021 In the Reasons for Judgment dated September 24, 2019, the following changes have been made: [1] Paragraph 2 should read: Mr. McDonald is before the court facing two counts under the Fisheries Act. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia