R. v. ALS Fisheries Ltd., 2022 NSPC 30

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. ALS Fisheries Ltd. , 2022 NSPC 30 Date: 20220902 Docket: 8503921, 8503922, 8503924 8503925, 8503926, 8503927 8503928, 8503931, 8503932 8503934, 8503935, 8503939 8503940, 8503942 Registry: Halifax Between: Her Majesty The Queen v. Als Fisheries Ltd. Law Fisheries Ltd. Casey Henneberry Samer Zakhour Judge: The Honourable Judge Elizabeth Buckle, Heard: May 2, 3, 4, 5, 18, 19, 20, 2022 in Halifax, Nova Scotia Decision September 2, 2022 Charge:

Section 78 x 7 of the Fisheries Act

Section 43.4(3) x 7 of the Fisheries Act Counsel: Trevor McGuigan, for the ALS Fisheries Ltd. Michelle James for Law Fisheries Ltd. Stan MacDonald and Jack MacDonald for Casey Henneberry Michelle James for Samer Zakhour Angela Nimmo, Lee-Ann Conrod for the Court By the Court: Introduction [ 1 ] The four accused, two corporations and two individuals, were charged upon a single Information alleging various joint and separate offences under the Fisheries Act (the Act ).

All charges relate to the regulated, quota-based halibut fishery. [ 2 ] In 2019 and 2020, officers with the Department of Fisheries and Oceans (DFO) were investigating vessels involved in the halibut fishery, including the Ivy Lew. [ 3 ] During this period, the Ivy Lew was permitted to fish halibut under a licence held first by A.L.S. Fisheries Ltd. (ALS) and then by Law Fisheries Ltd. (Law Fisheries).

The Crown alleges that Casey Henneberry was the Captain of the Ivy Lew on seven fishing trips during which he violated conditions of those licences by providing inaccurate hails, failing to keep an accurate log book and failing to have landings verified by a dockside observer. ALS and Law Fisheries are charged with failing to ensure compliance with the conditions of the licence for the trips occurring when they each held the licence. [ 4 ] The investigation of the Ivy Lew culminated on June 12, 2020 when fisheries officers went to a dock in Sambro, NS, seized halibut and the Ivy Lew and made arrests.

Some of the seized halibut was already skinned and fileted with heads removed, so Casey Henneberry and Law Fisheries are also charged with possessing fish, the weight of which cannot be readily determined. One of those arrested on the dock was Samer Zakhour, whom the Crown alleges was present to buy the halibut from the Ivy Lew. The Crown alleges

that this is one of the landings that occurred without a dockside observer, so, for this landing, he was a party to the offence of failing to comply with that condition of the licence. Upon arrest, he gave a statement to fisheries officers which the Crown alleges included false or misleading information. As a result, he is also charged with making a false or misleading statement to a fisheries officer. Charges [ 5 ] Prior to trial, at the request of the Crown, some counts were dismissed entirely or as against specific accused. Seven counts remain: Count 2 – A.L.S.

Fisheries Ltd. and Casey Henneberry did on or between February 26, 2019 and June 20, 2019, at or near Sambro, Nova Scotia, while carrying out any activity under the authority of a licence, contravened or failed to comply with any condition of the licence by providing an inaccurate hail, respecting the fishing vessel Ivy Lew, contrary to s. 22(7) of the Fishery (General) Regulations, SOR/93- 186, thereby committing an offence under s. 78 of the Fisheries Act, R.S.C. 1985, c. F-14 Count 3 - A.L.S.

Fisheries Ltd. and Casey Henneberry did on or between February 26, 2019 and June 20, 2019, at or near Sambro, Nova Scotia, while carrying out any activity under the authority of a licence, contravened or failed to comply with any condition of the licence by failing to maintain a true and up to date record of his fishing activities and all catch respecting the fishing vessel Ivy Lew, contrary to s. 22(7) of the Fishery (General) Regulations, SOR/93-186, thereby committing an offence under s. 78 of the Fisheries Act, R.S.C. 1985, c.

F-14 Count 4 - Law Fisheries Ltd., Casey Henneberry and Samer Zakhour did on or between June 21, 2019 and June 12, 2020, at or near Sambro, Nova Scotia, while carrying out any activity under the authority of a licence, contravened or failed to comply with any condition of the licence by not having the weight and species of all groundfish landed from the vessel named Ivy Lew, verified by a dockside observer, contrary to s. 43.4(1) of the Fisheries Act thereby committing an offence under s. 43.4(3) of the Fisheries Act, R.S.C. 1985, c.

F-14 Count 5 - Law Fisheries Ltd. and Casey Henneberry did on or between June 21, 2019 and June 12, 2020, at or near Sambro, Nova Scotia, while acting under the authority of a licence, contravened or failed to comply with any condition of the licence by providing an inaccurate hail, respecting the fishing vessel Ivy Lew, contrary to ss. 43.4(1) of the Fisheries Act thereby committing an offence under s. 43.4(3) of the Fisheries Act, R.S.C. 1985, c.

F-14 Count 6 - Law Fisheries Ltd. and Casey Henneberry did on or between June 21, 2019 and June 12, 2020, at or near Sambro, Nova Scotia, while acting under the authority of a licence, contravened or failed to comply with any condition of the licence by failing to *accurately* complete the Fixed Gear Monitoring Document, respecting the fishing vessel Ivy Lew, contrary to ss. 43.4(1) of the Fisheries Act thereby committing an offence under s. 43.4(3) of the Fisheries Act, R.S.C. 1985, c.

F-14 (*added on consent, March 31, 2022) Count 8 - Law Fisheries Ltd. and Casey Henneberry did on or about June 12, 2020, at or near Sambro, Nova Scotia, have in their possession fish that had been skinned, cut, packed, or otherwise dealt with in such a manner that the weight of the fish cannot be readily determined, contrary to ss. 36(2)(

c) of the Fishery (General) Regulations, SOR/93-186, thereby committing an offence under s. 78 of the Fisheries Act, R.S.C. 1985, c. F-14 ; and Count 9 – Samer Zakhour Fishery did on or about June 12, 2020, at or near Sambro, Nova Scotia, make a false or misleading statement to a Fishery Officer carrying out duties or functions under the Fisheries Act, R.S.C. 1985, c. F-14 , contrary to s. 63(1) of the Fisheries Act , thereby committing an offence under s. 78 of the Fisheries Act, R.S.C. 1985, c. F-14 . Legislation and Licence Conditions [ 6 ]

Section 78 of the Fisheries Act makes it an offence to contravene the Act or regulations. [ 7 ] Five of the charges allege failures to comply with a condition of a licence.

The legislation and specific wording of the conditions in the licences changed during the period covered by the Information. [ 8 ] During the period captured by Counts 2 and 3, the failure to comply with a condition of a licence was dealt with as an offence under s. 78 of the Fisheries Act resulting from a contravention of s. 22(7) of the Fisheries (General) Regulations : s. 22(7) N o person carrying out any activity under the authority of a licence shall contravene or fail to comply with any condition of the licence.”. [ 9 ] During the period captured by Counts 4, 5 and 6, the requirement to comply with a condition of a licence and the resulting offence for failing to comply were both addressed in s. 43.4 of the Fisheries Act : s. 43.4

(1) Every person acting under the authority of a … licence … shall comply with any terms and conditions of the … licence that are imposed under the authority of this Act . [ 10 ]

Section 43.4(3) makes it an offence to contravene ss. 43.4(1). [ 11 ] The licence held by ALS that applied during the period captured by Counts 2 and 3 (Ex. 14, Tab 3) and those held by Law Fisheries that applied during the period captured by Counts 4, 5 and 6 (Ex. 14, Tabs 6 - clause 6.6, 9 – clause 19 & 20, & 11 – clause 19 & 20), all had a similar requirement that “the licence holder or vessel operator” must hail-in to a dockside monitoring company “the accurate round weight of fish on board the vessel by individual species”. [ 12 ] The wording of the logbook requirement changed.

The licence held by ALS that applied during the period captured by Counts 2 and 3 (Ex. 14, Tab 3) and the licence held by Law Fisheries that applied during part of the period captured by Counts 4, 5, and 6 required that, “the licence holder or vessel operator … maintain a true and up to date record of his fishing activities and all catch, in a

fishing logbook…” and that the “logbook” be “completed accurately” (clause 6.4). [13] For the remainder of the period, the condition required that the “licence holder/operator” complete portions of the “fixed gearmonitoring document 2011” in accordance with the instructions described in a

schedule and that the entries always “be accurate” (Ex. 14,Tabs 9 & 11, clause 29).

More specifically, the instructions required that that the “round weight of fish caught by species” be entered,that the entries be an accurate record of all fish on board the vessel” and include the “accurate round weight of the fish caught, and thespecies” (clause 29 (a) & (c). [14] The licences for the entire period covered by the Information included a condition that the licence holder or vessel operatormust not offload fish without a dockside monitor being present who must verify the weight and species of the fish, be provided with thelogbook or fixed gear monitoring document and have a right to inspect the hold (Ex. 14, Tabs 3 & 6 - clause 9.1 and Tabs 9 & 11 – clause27). [15] Count 8 alleges a violation of s. 36(2)(

c) of the Fishery (General) Regulations: s. 36(2) No person who catches and retains a fish under the authority of a licence issued for the purpose of commercial fishing shall havethe fish in possession if the fish is skinned, cut, packed or otherwise dealt with in such a manner that (

c) the weight of the fish cannot be readily determined. [16] Count 9 alleges a violation of s. 63(1) of the Fisheries Act: s. 63 (1) No person shall make a false or misleading statement, whether orally or in writing, to an inspector, a fishery officer, a fisheryguardian, any authority designated by a fishery officer or a fishery guardian or any authority prescribed under paragraph 38(9)(

a) or (b)who is carrying out duties or functions under this Act. [17] There are also provisions in the Fisheries Act that address matters of proof: s. 78.4 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a personin respect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations,whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence wascommitted without the knowledge or consent of the accused. s. 78.5 In any prosecution for an offence under this Act, where a question arises as to whether a person was issued a licence, the burden ison the person to establish that the licence was issued. s. 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 Positions of the Parties [18] Counts 2 and 5 allege inaccurate reporting of weight in hails.

Counts 3 and 6 allege inaccurate recording of weight in what iscommonly referred to as the ‘logbook’. [19] There is no dispute that the licences under which the Ivy Lew was fishing during the relevant time periods all required thelicence holder or vessel operator to ‘hail in’ to a dockside monitoring company prior to returning to port and that the hail must include“the accurate round weight of fish onboard the vessel” by species.

There is also no dispute that licences required that the licence holderor vessel operator accurately record the weight of fish onboard. [20] Count 3 particularizes the default as failing to maintain “a true and up to date record”. This reflects the wording in theapplicable licence condition and regulation. All counsel argued the case on the basis that ‘true’ means ‘accurate’ and no argument wasmade that it imports a requirement to prove deceit. This is consistent with how similar terms have been interpreted in the caselaw (eg. R.v Petten, (NL SC), 129 Nfld. & P.E.I.R. 37 (Nfld.

S.Ct. – TD), where the Court found that ‘false statement’ did notrequire proof of deceit) and with the fault requirement for a strict liability offence. [21] As such, for counts 2, 3, 5 and 6, the Crown must prove that the weight in a hail or logbook was not accurate.

The Crownacknowledges that ‘accurate’ does not mean exact and argues that the weights reported for the seven trips were sufficiently inaccurate toattract liability, that Casey Henneberry was the Captain/vessel operator of the Ivy Lew when inaccurate hails or log entries were made sois responsible for the failure to comply with the respective licence conditions and that ALS or Law Fisheries are responsible becausethey failed in their duty as the respective licence holder to ensure the conditions of the licence was complied with by anyone who actedunder it.

The Defence argues that the Crown has not proven that Casey Henneberry was the Captain for all seven trips and that theweights reported for those trips when he was Captain were not sufficiently ‘inaccurate’ to attract liability.

No due diligence defence wasput forward by the corporate accused and they essentially concede that if the Crown proves the reports/logs were inaccurate, they wouldalso be found guilty of the related offences. [22] Count 4 alleges a failure to comply with a condition of a licence by offloading halibut without a dockside observer andspecifically relates to three dates: March 17; May 8; and, June 12 of 2020.

There is no dispute that the applicable licence conditionsrequired the licence holder or operator of the vessel to have the weight and species of all groundfish landed verified by a docksidemonitor (DSM) and prohibited offloading unless a DSM was present. Captain Henneberry, Law Fisheries and Mr. Zakhour, who isimplicated in the alleged offload on June 12, 2020, argue that the Crown has not proven that halibut was actually landed without a DSMon any of these dates. They dispute the Crown has proven that any fish observed on March 17 and May 8 were groundfish and that any

fish observed on any of the dates was landed from the Ivy Lew. Captain Henneberry also argues that the Crown has not proven he wasthe Captain/vessel operator of the Ivy Lew during any illegal offload on those dates. Mr. Zakhour argues that if the Crown doesestablish there was an illegal offload on June 12, 2020, because this offence is statutorily limited to those acting under the licence andMr. Zakhour was not, the offence does not capture him and the Crown has not proven he was a party to that offence. This requiresconsideration of whether party liability under the Fisheries Act is strict liability.

The Crown argues it is, meaning that they are notrequired to prove that he had any illegal knowledge or intent. The Defence argues it is not, so the Crown would have to prove both. [23] Count 8 alleges possession of fish that has been dealt with in such a way that the weight cannot be readily determined. There isno dispute that on June 12, 2020, halibut was seized from the Ivy Lew that was skinned, fileted and had the heads removed. CaseyHenneberry was not one of those arrested at the wharf and was not physically in possession of the fish when it was seized.

The focus ofsubmissions on this count is whether the Crown has proven that Casey Henneberry had been onboard the Ivy Lew or was otherwise inconstructive possession of the fish and whether the Crown has proven that the weight of the fish could not be “readily determined”. [24] Count 9 alleges that, on June 12, 2020, Mr. Zakhour provided a misleading or false statement to a fisheries officer carrying outduties. There is no dispute that fisheries officers were carrying out their duties and that he gave a statement which was false.

The focusof submissions is on how this offence provision should be interpreted and whether the Crown’s

interpretation is overbroad. Issues [25] While of course my task, in general, is for each count, to determine whether the Crown has proven the actus reus beyond areasonable doubt. The real issues are more narrow: 1. Has the Crown proven that any weight reported in a hail or recorded in a log book was “inaccurate”? 2. Has the Crown proven that groundfish was landed from the Ivy Lew without a dockside monitor? Specifically that any fishwere removed from the Ivy Lew and that it was groundfish. 3.

Has the Crown proven that Casey Henneberry was responsible for any inaccurate hail or log entry and/or any landingwithout a DSM? 4. Has the Crown proven that the weight of fileted halibut found on board the Ivy Lew on June 12, 2020 could not be “readilydetermined”? If so, has the Crown proven that Casey Henneberry was in possession of it? 5. For Mr. Zakhour, if the Crown proves there was an unmonitored landing of groundfish from the Ivy Lew on June 12, 2020,does it capture him as a principal or party?

Specifically, is the unmonitored landing offence statutorily limited to those who are “actingunder the authority of a licence? Is party liability available for those who are not subject to the licence? Assuming it is, has the Crownproven that Mr. Zakhour was a party? Specifically, a. Is party liability under the Fisheries Act strict liability? b. If not, has the Crown proven the full mens rea requirements for party liability – that he committed some act with knowledge and forthe purpose of aiding or abetting an unmonitored landing? 6. What is the proper

interpretation of the offence under s. 63(1)? General Principles [26] All offences are strict liability. As such, absent a defence of due diligence, each accused would be convicted if the Crownproved beyond a reasonable doubt that he or it committed the act. The Defence did not call evidence. [27] The accused are presumed to be innocent of these charges. The Crown bears the burden of proof beyond a reasonable doubt. There is no burden on the accused except on the issue of due diligence or as otherwise provided in the Act. [28] Proof beyond a reasonable doubt is a high standard.

It is more than suspicion of guilt or probable guilt. It is not proof to anabsolute certainty but falls much closer to absolute certainty than to proof on a balance of probabilities. It is not proof beyond any doubtnor is it an imaginary or frivolous doubt. It is based on reason and common sense, and not on sympathy or prejudice. (R. v. Starr, 2000SCC 40 , [2000] S.C.J. No. 40; R. v.

Lifchus, [ (SCC), 1997] 3 S.C.R. 320.). [29] The charges can be proven through direct or circumstantial evidence or a combination. [30] The burden on the Crown when proof of an element is based on circumstantial evidence is to prove beyond a reasonable doubtthat the guilty inference is the only reasonable inference to be drawn from the evidence (R. v. Griffen, 2009 SCC 28 , [2009]S.C.J. No. 28, paragraph 34). There is no burden on the Defence to persuade me that there are other more reasonable or even equallyreasonable inferences that can be drawn.

A reasonable doubt may be logically based on a lack of evidence (R. v. Vilaroman, 2016 SCC33, at para. 36). I am permitted to draw logical or common sense inferences, but only where those inferences are grounded in or flowfrom the evidence (R. v. Pastro, 2021 BCCA 149). The question is “whether the circumstantial evidence, viewed logically and in lightof human experience, is reasonably capable of supporting an inference other than that the accused is guilty” (Vilaroman, at para. 38). Ifso, then the accused must be acquitted.

Analysis Counts 2, 3, 5, and 6 - Inaccurate Hails and Logs [31] Both Crown and Defence focussed their submissions on whether the Crown had proven that the weights recorded and reportedwere sufficiently inaccurate to attract liability.

[ 32 ] ‘Accurate’ is not defined in the statute, regulations or licence conditions. Nor do those sources include any parameters such as a requirement that the reported weight be within a specified percentage of the actual weight. [ 33 ] Courts that have been called upon to consider this issue have also not defined ‘accurate’ with reference to a specific margin of allowable error. [ 34 ] I have interpreted ‘accurate’ as ‘reasonably accurate’ and concluded that it incorporates requirements of reasonable precision and care and must be assessed with reference to the general context and the specific circumstances.

In reaching that conclusion, I have relied heavily on the decision of Judge Chisholm in R. v. Henneberry ( 2016 NSPC 6 ) and the comments of the Court in R. v. Vanbuskirk ( 2000 NSCA 11 ). [ 35 ] In Vanbuskirk , the Court defined ‘accurate’ as meaning “careful, precise”. In that case, the licence condition in issue required the captain to hail an estimate of the fish on board but did not include any requirement that it be accurate. In convicting the accused, the trial judge had imposed a requirement that the reported weight of fish be reasonably accurate.

In that context, the Court of Appeal concluded that the concept of reasonable accuracy or precision was the antithesis of an estimate, which required only an approximation. Because the licence condition in issue did not use the word ‘accurate’, the Court was not required to and did not further elaborate on what that standard would demand. [ 36 ] In Henneberry, Judge Chisholm interpreted ‘accurate’ in a case where the licence condition under review required an accurate hail.

After a comprehensive review of the caselaw, including VanBuskirk , he concluded that accurate in this context did not mean exact since that would be unreasonable. I agree. Relying on the definition of accurate provided by the Court of Appeal in VanBuskirk , he concluded that accurate incorporates requirements of both precision and care in completing the task (para. 137). [ 37 ] The Crown has also relied on comments in other cases, including Petten and R. v. Kavanagh ( 214 Nfld. & P.E.I.R. 350 (Nfld. P.C.) ) .

In my view, those cases are of little assistance in deciding what ‘accurate’ means since, in both, the licence condition in issue required an ‘estimate’ of weight rather than an ‘accurate’ weight. In Vanbuskirk , our Court of Appeal said those two terms are not the same.

With that caveat, some of the Court’s comments in Petten would also apply to ‘accurate’: the reported logged weight should be “as accurate as possible”; should not be simply a “guess”; and, based on experience and training the person making the report/log is expected to use his best skills and judgment to come as close as possible to the actually amount being estimated.” (para. 21). [ 38 ] The cases, including those that have interpreted ‘estimate’ and ‘accurate’, have recognized that the level of precision and care required must be informed by the general context.

That context is a highly regulated, quota-based industry, the purpose of which is to help achieve the important conservation and management objectives of the Fisheries Act ( VanBuskirk , para 7 ; Henneberry (NSPC), paras. 96 - 97). There is some dispute about the importance of the hail and log requirements to those objectives, given the requirement for 100% monitoring by a dockside monitor.

In VanBuskirk , the Court of Appeal said there “had been no evidence before the trial judge as to why an element of accuracy or precision in the weight of round fish hailed was necessary to achieve the objectives of the Fisheries Act and the Regulations, particularly in view of the requirement for 100% monitoring by dockside weighing of the catch.” (para. 25).

The Court acknowledged that i t is “of extreme importance, for the purpose of monitoring the fishery, that the Department of Fisheries have accurate information as to the weight of the fish by species actually landed.” However, the Court also suggested that, given there was 100 % dockside monitoring, the hailing of weight did not appear to be of critical importance (para. 10). [ 39 ] In Henneberry, Judge Chisholm did have evidence about the importance of an accurate hail and found that: The requirement for a captain of a vessel to make an "accurate hail" of the round weight of the fish on the vessel by individual species before returning to port is a tool used to enforce fishing quotas, (see evidence of F.O.

Smith at p. 48). While the accused's vessel was subject to 100% dockside monitoring, I accept the evidence of F.O. MacDonald that the lucrative nature of the halibut fishery creates a risk of fraud or collusion. And further that the spot checking by Fisheries Officers of fishers and dockside monitors is the most effective tool to ensure the compliance with the fishing quotas (per F.O. Smith at p. 48) [ 40 ] In R. v. Henneberry, 2019 NSSC 119 , Justice Edwards, hearing a Crown appeal of sentence, said that dockside monitoring is not fool proof.

He found that “it is very susceptible to being circumvented and does not address the many opportunities to cheat between when the fish are caught and when the DSM sees them.”. He provided examples of off-loading to another vessel and in an unmonitored location (para. 22). [ 41 ] In the case before me, I also have evidence from Fishery Officer Jessica Belbin (FO Belbin) who testified that a proper hail-in and accurate log are integral parts of the regulatory scheme and used to prevent fraud and collusion.

She said they ensure an accurate record of the catch before landing to deter illegal offloading. [ 42 ] I accept that the hail and logbook are important tools in enforcing quotas, preventing fraud and essentially act as a check or back-up for the DSM requirements and other enforcement tools (evidence of FO Belbin; Henneberry (NSPC), para. 97; and, Henneberry, (NSSC), para 21 - 22). [ 43 ] The cases, again including those that have interpreted ‘estimate’ and ‘accurate’, also recognize that the specific circumstances of the case have to be considered in determining how accurate the reported and recorded weights must be.

In R. v. Vanbuskirk ( [1999] N.S.J. No 215(SC) ), the

summary conviction appeal judge opined that reasonableness includes an assessment of both the ultimate number and the method by which it was obtained. [ 44 ] In Henneberry (NSPC), Judge Chisholm said that the accurate hail condition in the fishing license “requires that the vessel operator make as precise a report of the round weight of the fish onboard the vessel by individual species as can be accomplished with the exercising of care in completing the task” and that “[t]he exercise of care involves consideration of factors including the method and equipment used in completing the task and the captain's knowledge and experience.” (paras. 137 – 138).

In determining whether the Captain in that case had failed to meet the standard for accuracy, he considered the evidence before him of harsh weather, fatigue and long hours and the Captain’s actual method.

[ 45 ] In Petten , the Court referred to the skills, judgement, experience and training of the person making the estimate (para. 24). In Kavanagh, the Court considered the experience of the fisher. [ 46 ] Finally, I have evidence from FO Belbin as to what she and DFO would consider to be relevant factors in their determination of whether to lay a charge relating to inaccurate reporting/recording of weight.

She said that, other than the raw numbers, you have to look at “the totality of the circumstances” which would include the Captain’s experience, their familiarity with the vessel which would impact their knowledge of the holds (a captain who knew the size of the hold could see how full the hold was and estimate weight), the sea conditions during the trip, the number and experience of the crew, and the measures taken to try to get an accurate estimate of weight while at sea. For example, she has heard but never seen that some vessels have scales on board.

These seem to be reasonable factors for me to consider and neither Crown nor Defence takes any issue with these factors or suggest others. [ 47 ] So, with this this standard in mind, I will examine the evidence to determine whether the Crown has proven beyond a reasonable doubt that any of the logged/hailed weights were not accurate, that Casey Henneberry was the Captain for any trip where inaccurate weights were logged/hailed and whether each corporate accused is liable as the respective licence holder.

Evidence for Counts 2, 3, 5 and 6 [ 48 ] Counts 2 and 3 allege offences between February 26, 2019 and June 20, 2019, and encompass one trip: May 16 - 30, 2019 (trip 1). [ 49 ] Counts 5 and 6 allege offences between June 21, 2019 and June 12, 2020 and encompass six trips: June 18 - 28, 2019 (trip 2); February 7 – 21, 2020 (trip 3); March 7 – 17, 2020 (trip 4); April 3 – 16, 2020 (trip 5); April 22 – May 8, 2020 (trip 6); and, May 29 – June 11, 2020 (trip 7). [ 50 ] Various documents were entered as business records under the Canada Evidence Act .

For ease of use, the Crown prepared separate exhibits for some of those documents, organized by category. Exhibit 15 contains records for the Ivy Lew for each of the seven trips in issue. Each tab relates to a different trip and contains the relevant documents for that trip, including: the ‘hail out’ details; the Fixed Gear Groundfish Monitoring Document (log book); the ‘hail report’; the ‘hail in’; the DFO Groundfish Tally; and, data from the vessel monitoring system (VMS). [ 51 ] FO Belbin explained the process in which these documents are used, how they were created and provided some

interpretation of the information they contain. [ 52 ] Before a vessel departs on a fishing trip, she must ‘hail out’ to DFO. This is done by calling an automated, voice recognition phone line and reporting identifying information about the vessel and the date, time and port of departure. The information from the ‘hail out’ is then entered into the Fishery Officer Intranet Portal (FOIP).

The ‘hail out’ details page is produced from that database. [ 53 ] The Fixed Gear Groundfish Monitoring Document 2011 (Monitoring Document) is part of the logbook which each vessel is required to have onboard during fishing trips. The licence conditions require that it be completed by the vessel operator or licence owner. It is typically completed by the captain who records their name and signs it.

It is a daily record of the vessel’s fishing activity, including if gear was set or hauled, fish caught and round weight of retained fish by species. [ 54 ] At least three hours before landing in a port, the vessel operator, who is typically the Captain, must alert DFO that the vessel intends to land. This is done by calling the DSM company. Gregory Croft, a program coordinator with DFO, testified that it is not a specific requirement that the Captain on the vessel make the call directly. He said it is the licence holder’s responsibility to make sure it is done and that it can be done by an intermediary.

He agreed that someone on the vessel would either call the DSM company directly or call someone on land who would make the call. FO Belbin testified that the caller reports identifying information about the vessel, the anticipated date, time and port of landing, the weight and species of catch and the date and intended time of offload. The purpose of the ‘hail-in’ is to alert DFO of the landing and allow a DSM to be dispatched.

When the call is received, a clerk with the DSM company records the information received into the “Hail Report”, forwards the information to DFO and dispatches a DSM to the landing site. [ 55 ] A data clerk inputs that information into the FOIP and the ‘hail in details’ page is produced from that database. [ 56 ] Every vessel is required to have a vessel monitoring system (VMS) onboard. It provides the geographic location of the vessel. While on a fishing trip, the system must report its position every hour.

The data contained at the end of each tab in Ex. 15, is produced from that system and includes the name of the vessel, the date and time, vessel speed and position in longitude and latitude coordinates. Red text denotes that the location reporting was delayed. [ 57 ] FO Belbin testified that the role of the DSM is to monitor the offload and verify the weights of all species. The DSM records the weights of all fish as they come off the boat into the “Groundfish Tally” document and calculates the weight of the offload. [ 58 ] The DSM remains on the wharf the whole time.

The DSM must be permitted to inspect the holds to ensure that all fish have been offloaded. Prior to Covid the DSMs always boarded the vessel but during Covid this practice was suspended. The DSM fills out the “Fixed Gear Weighout Slip” portion of the Monitoring Document, signs it, removes the original from the logbook (leaving a copy) and sends it to DFO who stamps it when received. [ 59 ] FO Belbin calculated the differences between logged/hailed weight and the weights obtained by the DSM (landed weight) for each trip. She prepared a

summary table (Hail Table, Ex. 16). This table was admitted as an aid only so I also did my own calculations. [ 60 ] Before examining the differences, some explanation is required. [ 61 ] The logged/hailed weights are ‘round weight’, meaning the whole fish, but once the DSMs weigh the fish, they have been gutted and the heads may have been removed. A conversion factor is used to obtain an approximate ‘round weight’. The conversion factors are found in the licence conditions. They vary depending on species and whether the head has been removed. In this case, the

licence conditions include conversion factors for halibut and cod, with and without heads, but there is no conversion factor noted for Hake (eg. Ex. 14, Tab 11, p. 125). FO Belbin testified that she was not aware of the rationale for the conversion factors but understood they had some scientific basis. [ 62 ] FO Belbin testified that when the DSM records the ‘form’ the fish is in on the Tally Document using acronyms: GHOF means gutted, head off; and, GHON means gutted, head on. This determines which conversion factor to apply.

The DSM also uses discretion to apply an ice allowance depending on their opinion of how much ice is packed with the fish when weighed. FO Belbin testified that 2 % is usual but she has seen it be as high as 5% or as low as 0%. The Defence does not dispute the accuracy of the gross weights recorded in the Tally sheets.

However, I accept that the discretionary ice allowance and species-based conversion factors create a built-in lack of precision in the DFO calculation of landed weight which is relevant when assessing the discrepancies between logged/hailed weight and landed weight to determine if they are inaccurate. [ 63 ] I accept the numbers in FO Belbin’s

summary table except for her use of a conversion factor for Hake. The Crown acknowledges that the conversion factor she used for that species is not in the licence conditions and there is no evidence of where it came from. [ 64 ] For each trip, I have performed one additional calculation. FO Belbin reported the absolute difference between logged/hailed weight and landed weight and also calculated the difference as a percentage of the logged/hailed weight.

For example, for trip 1, the logged/hailed weight was 10,000 lbs and the landed weight (after applying the conversion factor and ice allowance) was 6,709 lbs, for a difference of 3,291 which FO Belbin reported as a percentage difference of 32.9%. That number accurately reflects the percentage by which the landed weight was ‘different’ than the logged/hailed weight.

However it does not reflect the ‘error percentage’ for the logged/hailed weight, meaning the percentage by which the logged/hailed weight (the predicted/estimated weight) was lower or higher than the landed weight (which approximates the actual/true weight). Again, using trip 1 as an example, the logged/hailed weight exceeded the landed weight by 49% (3,291 / 6,709). This method of calculation has been used in other cases (eg.

Petten , and Henneberry (NSPC) where the Court used both calculations). [ 65 ] The following chart compares the weights logged/hailed by the Ivy Lew to the landed weight (those recorded by the DSM/DFO). Unless otherwise specified, the species is halibut. ‘Log/Hail’ means weight in pounds recorded in the log book and hail. For each trip, these numbers are the same so are included as one number. Trip 1 does not specify pounds or kilograms, however I have assumed pounds as that is used for all other trips and FO Belbin testified that this was typical.

This gives the benefit to the accused. ‘Landed’ means weight in pounds after conversion and ice allowance. ‘Difference’ is the raw number by which the logged/hailed weight was over or under the landed weight. ‘% Difference’ is that number expressed as a percentage of the logged/hailed weight. ‘% Error’ is that number expressed as a percentage of the landed weight.

Trip Log/Hail Ice % Landed Difference % Difference % Error 1 10,000 2% 6,709 + 3,291 + 32.9% 49% over 2 16,500 2% 11,438 + 5,062 + 30.7% 44% over 3 35,500 300 Cod 800 Hake 2% 31,153.5 248.4 1,415** + 4346.5 + 51.6 - 615 + 12.2% + 17.2% - 76.9% 13.9% over 20.8% over 43.5% under 4 24,500* 2% 27,209.7 - 2,709.7 - 11.06% 10% under 5 18,400 0% 14,418 + 3982 + 21.64% 27.6% over 6 17,900 100 Hake 2% 14,909.6 165** + 2900.4 - 65 + 16.71% - 65% 19.5% over 39.4% under 7 18,200 2% 16,776.9 + 1,423.1 + 7.8% 8.5% over * Cumulative of two Hail Reports relating to one trip.

The Ivy Lew was forced to make an unscheduled landing due to bad weather. **After Ice Allowance only. Because I have no evidence of the source of the conversion factor used by FO Belbin in her table, I have not used it. [ 66 ] On June 12, 2020, there was a seizure of 9,399 pounds of halibut from the dock which the Crown argues was part of the catch for trip 7 so should be included in the calculation of inaccuracy for that trip.

If so, the comparison for that trip would be as follows: Trip Log/Hail Ice % Landed Difference % Difference % Error 7 18, 200 * 26, 176 - 7,976 - 43/8 % 30.5% under * The ice allowance for the landing was 2%, but it appears that the seized halibut was removed from the tubs for weighing so no ice allowance was required. [ 67 ] I have limited evidence concerning the other relevant factors. [ 68 ] FO Belbin acknowledged that the Ivy Lew was involved in ‘off shore’ fishing and that the seas would generally be rougher the further one goes off shore. [ 69 ] She also acknowledged that halibut vary in size and weight from 81 cm and up and from 25 lb to as much as 150 lb, that it would very challenging to weigh fish if hauling in rough sea and that the DSMs are weighing on a stationary surface. [ 70 ] FO Andre Roy, testified that he had been a fisheries officer with DFO for 14 years including some experience on an off-shore vessel, fishing halibut.

He testified that the sea can be rough and the work is very dangerous. He agreed that the goal, in high seas, is to

get the fish onboard and stowed. He acknowledged that there would probably not be time to weigh individual fish and the practice he has observed is that weight is estimated after each string, using a chart which contains the estimated weight of a fish according to their length and those weights are recorded in a notebook to be later combined and recorded in the log for the day. [ 71 ] FO Stephen Locke testified that he had been a fisheries officer with DFO since 2009. He agreed that it would be rare for a hail to be exact but it does happen.

He said that if the hail was within 5 %, he would consider it “pretty good”. He acknowledged that he had some previous experience with Casey Henneberry but denied that he every told him it was better to hale over than under weight. He testified that to him, one wouldn’t be better than the other since both would be off. [ 72 ] The evidence does not establish that, prior to trip 1, Casey Henneberry had a great deal of experience as a Captain or specifically with the Ivy Lew. FO Belbin testified that, based on the hails reviewed during this investigation, she believed he was a frequent captain of the Ivy Lew.

However, there is no evidence of how many hails were reviewed by her beyond those for these seven trips and there is no evidence of whether any other trips occurred before or in the midst of these trips. Therefore, her evidence is of limited assistance in determining whether he was experienced with the Ivy Lew at the time of any specific trip. She also acknowledged that the Ivy Lew was “practically” a brand new vessel. [ 73 ] FO MacLean testified that Casey Henneberry was the Captain of a vessel he inspected between 2018 and May 8, 2020.

He also had some other dealings with him in the industry, but not as Captain. [ 74 ] I accept that there are factors that make obtaining a precise weight at sea difficult - seas can be rough, halibut can vary in size and weight, most vessels would not have a scale to weigh individual fish as they are landed, and the work is dangerous. [ 75 ] I also accept that Casey Henneberry had previously been the Captain of a vessel.

However, based on that evidence, as of the first trip, I could not describe him as an experienced Captain and there is no evidence that he was familiar with the Ivy Lew. [ 76 ] Using this evidence and the specific weights for each count, I have to determine whether the Crown has proven that Casey Henneberry reported inaccurate weights in the logbook/hail. This requires me to consider whether he was the Captain/vessel operator for each of the trips relied on by the Crown. [ 77 ] Counts 2 and 3 encompass Trip 1. Casey Henneberry does not dispute that he was the Captain for that trip.

Counts 5 and 6, encompass trips 2 – 7. He does not dispute that he was the captain for trips 3, 4 and 5 but argues that the Crown has not proven that he was the Captain for trips 2 and 6. [ 78 ] The evidence capable of establishing that he was the Captain is contained in the documents that were admitted as business records pursuant to s. 30 of the CEA. However, the information in those documents is not consistent.

For the following reasons, I am not satisfied that Casey Henneberry was the Captain/vessel operator of the Ivy Lew for trips 2 and 6 and, by extension, I am not satisfied that he completed the logbook or was responsible for the hail for those trips. [ 79 ] For trip 2, the Hail Out was called in by Cody Cameron. The Monitoring Document, prepared by the Captain / vessel operator, also lists that name as the Captain and the Captain’s signature appears to be the same name. [ 80 ] The Hail Report, prepared by the DSM company, lists the Captain as “Kasey Henneberry” and the name of the caller as “Andy Henneberry”.

The Hail In Details record from the FOIP, inputted by a clerk from the DSM company, also indicates that the hail was called in by “Andy Henneberry” and under “comments”, the words “Captain Karsey Henneberry” appear. Finally, the Tally document, prepared by the DSM, lists the captain/licence holder as “Casie Henneberry”. [ 81 ] For trip 6, the Hail Out was called in by “Christopher Forbes”, the Monitoring Document has that name printed as “captain’s name” and the “captain signature” appears to be the same name on both pages.

The Hail Report from the DSM company lists the Captain as “Casey Henneberry” and the name of the caller as Andy Henneberry. The Hail In Details record, which is created from the same information also indicates that the hail was called in by Andy Henneberry and under “comments”, the words “Captain Casey Henneberry” appear. Finally, the Tally Document lists the captain/licence holder as “Casie Henneberry”. Mr.

Richardson was the DSM for this trip and had also been the DSM on trips 1, 3, and 4 where the Defence concedes that Casey Henneberry was the Captain. [ 82 ] Neither Christopher Forbes nor Cody Cameron were called as witnesses, thought I note that someone named Chris Forbes was arrested by fisheries officers on June 12, 2020. [ 83 ] The Crown argues that I should accept the information in the Hail-In Reports, Hail in Details Forms and DFO Tallies as proof that Casey Henneberry was the Captain during these trips, and, as such, he is responsible for the logbook entries and the Hail-In.

They submit that, the information about the identity of the Captain in these documents is more credible and reliable than that provided in the Hail-Out and Monitoring Document. [ 84 ] The Crown argues that the Hail-In documents and Tally were created by independent actors whose job it is to record this type of information. In contrast, they submit that the Hail-Out and Monitoring Document were created by someone related to the Ivy Lew and that Casey Henneberry would have had a motive to identify someone else as Captain in those documents.

Further, the identification of the Captain in the dockside Tally is particularly reliable as it was completed by the DSM who had just interacted with the Captain and would presumably know who they were. [ 85 ] Based on the evidence, I cannot conclude that the Hail-In Report and Details sheet are more credible or reliable than the Hail- Out and Monitoring Document. Both the Hail-Out Document and Monitoring Document have some indicia of reliability.

According to FO Belbin, the hail out system is an automated voice-recognition system, which would presumably accurately capture voice of the caller and identify Cody Cameron and Chris Forbes, not Casey Henneberry. The Monitoring Document must be completed by the Captain who then signs a declaration indicating it is accurate. It would be an offence to sign it as Captain if one were not. The risk of detection and prosecution adds to the reliability of the information identifying the Captain in that document. Further, Mr.

Croft, testified that in his role as program coordinator for DFO, he would expect the name on that document to be the Captain. Both FO Hynes and FO Belbin

agreed that the log book must be filled out by the Captain and that is where one would look to determine who the Captain is. [ 86 ] I accept that if Casey Henneberry was intending to commit an offence on a trip, he may have been motivated to distance himself from it by having someone else listed as Captain on the trip. However, that motive would have continued or been even greater by the end of the trips. If he wanted to create a fiction that Cody Cameron and Chris Forbes were the Captains for those respective trips, one would think he would have maintained it by using that same name for the Hail-In as well.

Since it is also an offence to make an inaccurate hail-in, presumably he would also want to distance himself from that. The Hail Report and Hail In Details form are completed by a clerk from the DSM company based on information provided by the caller.

Again, based on the evidence I have, it would seem simple for Casey Henneberry to call the DSM company himself or have someone else make the call and report that the Captain was Cody Cameron or Chris Forbes. [ 87 ] Given the evidence about the process leading to the creation of the Hail-In Report and Details Form, I do not accept that the information is more reliable than that contained in the Hail-Out and Monitoring Document. I accept that the data clerk working with the DSM is independent and was making entries as part of his or her duties so would presumably be trying to be accurate.

However, the information inputted was provided by telephone from someone who may or may not have been on the vessel. The documents establish that Andy Henneberry made the call. I have no evidence of whether Andy Henneberry was on the Ivy Lew and providing that information based on his own observations or if he was on-shore and reporting information he received from someone on the vessel.

As such the information is potentially double or even triple hearsay. [ 88 ] Further, the mis-spelling or misstatement of the first name in the Hail-In Report and Hail-In Details form is suggestive of some lack of attention to detail. Either the name was mis-spelled or mis-stated by Andy Henneberry or recorded inaccurately in the hand- written report and then mis-typed into the FOIP. This negatively impacts my assessment of the reliability of the information. [ 89 ] The Tally Document for both trips was filled out by DSM - Brian Richardson.

He was also the DSM for trips 1, 3 and 4 when the Defence concedes that Casey Henneberry was the Captain. The Crown argued that he was familiar with Mr. Henneberry, was on site and would have recorded the name of the Captain while or immediately after dealing with him, making this information particularly reliable and compelling. [ 90 ] I don’t have clear evidence as to how much interaction there is between a DSM and the Captain during a landing. Assuming there is some interaction, then Mr.

Richardson would have had one previous interaction with Casey Henneberry before dealing with the Captain during trip 2 and three previous interactions before trip 6. I accept that at least by trip 6, he would have been familiar enough to recognize him during direct dealings. [ 91 ] Mr. Richardson didn’t testify. I infer that he would fill in the weights on the Tally immediately as each container is weighed. However, I don’t have evidence as to whether the Captain’s name is filled in at the same time.

In my view, it would not be an unreasonable inference that a DSM might ‘pre-fill’ that information based on the information from the DSM company. Further, the Tally sheet does not require the Captain to initial or sign the document to acknowledge the accuracy of the information in it so there is no ‘check’. Finally, for both trip 2 and trip 6, on the Monitoring Document, Mr. Richardson signed his name right next to where Cody Cameron and Chris Forbes are listed as Captain. I accept that in signing the document, Mr.

Richardson was not attesting to its accuracy, but in my view a reasonably attentive and careful person would notice that the name on the document was not Casey Henneberry’s and realize there was a discrepancy. [ 92 ] Given the conflict in the documents, I am not persuaded that the recording of the name of the captain in the Hail-In documents and Tallies is sufficiently reliable to establish that Casey Henneberry was the Captain / vessel operator for these trips.

As such I am not persuaded that he was and, therefore, not satisfied that he is responsible for the log books and hail-ins for those trips. [ 93 ] As a result, as against Casey Henneberry, Counts 5 and 6 rely only on evidence from trips 3, 4, 5 and 7. Law Fisheries is charged under Counts 5 and 6 as the licence holder. However, the Crown acknowledges that they did not hold the licence during trip 2 so does not rely on evidence from that trip against them.

Since the licence holder’s obligation applies regardless of who is the Captain, as against Law Fisheries, these counts rely on evidence from trips 3 - 7. [ 94 ] The

summary conviction Appeal Court decision in Petten highlights the necessity of considering the evidence on each count separately – advising that trial judges address each count and specifically outline why the estimate is reasonable or unreasonable. In this case, both Crown and Defence addressed each trip individually but used evidence relating to other trips for context.

For example, the evidence from all trips is relevant to my assessment of some factors and the Defence specifically argued that determining whether a specific number is reasonable requires consideration of the fact that some reported catches were over and some were under. Analysis - Counts 2 and 3 [ 95 ] For trip 1, the landed weight was calculated as 6,709 pounds which Captain Henneberry had logged/hailed as 10,000 pounds.

So the weight he logged/hailed (his estimate) was 48.9% higher than the landed weight and the landed weight was 32.9% less than his estimate. [ 96 ] To determine whether the logged/hailed weight is reasonably accurate, I have to consider the numbers, the specific circumstances and the general context. [ 97 ] In terms of the numbers, I have little frame of reference other than what has been said in other cases.

I have no evidence of an industry standard or acceptable margin of error or any evidence from which I could determine what is a normal error rate in the industry (such as records of landings for this type of fishery in this sector for a period of time). I also caution myself about applying ‘common sense’ to an area that is far outside my experience. FO Locke testified that if the hail was within 5% it would be considered pretty good.

That evidence is anecdotal and even if I could rely on it, would be of little assistance in determining what percentage error should be considered unreasonable. [ 98 ] The Crown relies on a number of cases:

• In Petten , the accused was convicted of 16 counts of providing false information to DFO. He was required to record estimates of his catch. The Court concluded there were serious discrepancies between the estimates and the actual weight such that his actions were either reckless or deliberate and were not reasonable. The discrepancies that resulted in convictions included over-estimates and under- estimates, a variety of species of fish, a range of actual weights, and a range of percentage errors from 12 % to 100 %.

The reported decision does not contain information about any other factors the Court considered. • In Henneberry (NSPC decision), the accused was convicted of one count of failing to comply with a condition of a licence by hailing an inaccurate weight of halibut. The hailed weight was 17,450 lb and the landed weight was 22, 371 lbs. So, the hailed weight was 22% less than the landed weight.

The Court accepted that conditions while fishing accurate weights, but concluded that the reported weight was “far from precise” and said the degree of variance alone, might persuade a judge that the Captain had failed to exercise care in making the hail. • In Henneberry (NSSC), the Court was dealing with a sentence appeal for an accused who had pleaded guilty to a charge relating to an inaccurate log. He had recorded a total of 10,000 pounds of halibut for a three day period. The landed weight was 33,000 pounds, so the logged weight was almost 70 % under the landed weight. The

summary conviction appeal judge made strong statements about that level of discrepancy. [ 99 ] The Crown also referred to Kavanagh, primarily to assist with general principles. To the extent that the Crown seeks to use this case as a precedent to establish what level of inaccuracy would be unreasonable, I cannot rely on it. The catch in issue in that case was crab and I have no evidence of how estimating weight of crab might compare with estimating weight of halibut. [ 100 ] I fully appreciate that, as Judge Chisholm said in Henneberry, the ‘process has inaccurateness built into it’.

Given the realities of fishing, especially offshore fishing, requiring a fisher to provide an exact weight of thousands of pounds of fish would not be reasonable.

Given the process used by the DSM to calculate weight (the species based conversion factor and discretionary ice allowance), even their weight would not be expected to exactly reflect the weight of the fish when caught. [ 101 ] For trip 1, even if the ice allowance were 0 %, the disparity after conversion would be 3,153.2 (5,162 gross, 6,846.8 converted) with a percentage difference of 31.5 % and a logged/hailed weight that was 46% higher than the actual weight.

Even allowing for a large margin of error for both the logged/hailed weight and the weight obtained by the DSM, the difference would still be significant. [ 102 ] I have little information about the specific circumstances. I accept that the Ivy Lew was a relatively new vessel. I have no evidence of whether Captain Henneberry had previously operated her and some evidence that he had previously been a Captain on a fishing vessel on at least one occasion.

I have no specific evidence about the weather during this trip, but accept that the seas off-shore can be rough and that fishing halibut is difficult dangerous work which would no doubt make it more difficult to obtain precise weights, especially when the catch is large. I have no evidence about the number or experience of the crew or the method used at sea to come up with the weight used for the log book and hail.

I do have evidence from the fisheries officers that there are methods that can be used to estimate weight, including a chart that provides typical weights based on length and that Captains who are familiar with a particular vessel can calculate weight based on how full the hold(

s) are. [ 103 ] As I said, the context here is that of a regulated, quota-based fishery. I accept that the objectives of the system are important – conservation and resource management – and that accurate reporting of catch is an important part of the measures employed to obtain those objectives. [ 104 ] The Defence argues that the real concern and the focus of the authorities in a regulated, quota-based setting, is under-hailing and there is no advantage to over-hailing so no nefarious motive. The Crown argues that an over-hail and overage in the log book is indicative of an illegal offload.

The fisher accurately records the catch in the logbook and in the hail-in because of the risk of an at-sea inspection but then only legally offloads a part of the catch resulting in a disparity in the numbers. Based on the evidence in this case, I agree with the Defence that this would not be a sensible risk calculation since having the disparity discovered when the catch is weighed by a DSM is a virtually certainty whereas, the risk of having an inaccurate log-book and hail-in discovered during an at-sea inspection would be low [ 105 ] However, in a strict liability offence, the relevance of this is limited.

The Crown does not have to prove that Captain Henneberry intentionally over-hailed or that he had a specific purpose for doing so. The Crown only has to prove that the number is not reasonably accurate. Even if I accept the Defence suggestion that it would make sense for Captains to err on the side of over-reporting to avoid the risk of under-reporting which is more likely to be charged, the over-reporting must still be reasonable in the circumstances. It cannot be a guess.

It must be reasonably precise and obtained through reasonable care. [ 106 ] On the basis of the significant variance between the logged/hailed weight and the landed weight for trip 1, even if I accept that Captain Henneberry was inexperienced, had no previous experience with the Ivy Lew, had a small crew with little experience and allowing for what I accept are extremely difficult conditions at sea, I am persuaded beyond a reasonable doubt that the logged/hailed weight of halibut was not accurate. The discrepancy between the hailed/logged weight reflects a lack of precision and care in estimating the weight.

I am also satisfied beyond a reasonable doubt that Casey Henneberry was the Captain during that trip, that he made the inaccurate entry in the log, is responsible for the inaccurate hail, and by doing so violated the two conditions of the licence. [ 107 ] Therefore, I find Casey Henneberry guilty of counts 2 and 3. [ 108 ]

Section 78.4 of the Fisheries Act allows for conviction of a licence holder where it is proven that an offence was committed by a person in respect of any matter relating to any operation under their licence, “unless the accused establishes that the offence was committed without the knowledge or consent of the accused”. [ 109 ] That provision has been interpreted as imposing an obligation on a licence holder even when the licence holder is not fishing and not onboard the vessel during the fishing ( R. v. Forsey , 2003 NLSCTD 57 ). In R. v.

Pisces ( 2016 ONSC 618 ), the Court set out what it considered would be minimum steps a licence holder should take to ensure compliance by a Captain and stated:

53 There is no question that the owner of the vessel must, to a large degree, repose its trust in the captain of the vessel. However, that trust cannot be blind trust. There must be a system of oversight by which the owner of the vessel can reasonably ascertain that the commitments made by it to the Ministry as a term of its licence are being met. [ 110 ] I agree with this general statement. [ 111 ] A.L.S. Fisheries does not dispute that it held the licence and was responsible for ensuring the conditions of the licence were followed.

There is no evidence of any system of oversight by A.L.S. and they have not shown that the licence violation was committed without their knowledge or consent. [ 112 ] So, applying s. 78.4 of the Fisheries Act , I find A.L.S. Fishery guilty of counts 2 and 3 in the Information. Analysis - Counts 5 and 6 [ 113 ] I will first address trips 3, 4, 5, and 7 which apply to Casey Henneberry. The discrepancies for halibut for these trips are lower than for trip 1. However, for these trips there is evidence that Captain Henneberry had increasing experience as a Captain and increasing familiarity with the Ivy Lew.

Further, he had the experience from trip 1 which would have informed him that his estimate was far from exact. [ 114 ] Relying on the same analysis that I applied for Counts 2 and 3 and taking into account the different numbers and circumstances, I have concluded that: • Trip 3 - I am not satisfied the logged/hailed weight for halibut (13.9% over the actual weight) was inaccurate. I am not persuaded that, in the circumstances, this discrepancy reflects a lack of precision and care in estimating the weight. However, for cod and hake I am satisfied the logged/hailed weights were inaccurate.

For the cod, the disparity in a much smaller quantity of fish was higher – the logged/hailed weight was 20.8 % higher than the landed weight. For hake, again in a relatively small quantity of fish, the disparity was even greater – the logged/hailed weight was 43.5 % under the landed weight. In my view, these discrepancies reflect a lack of precision and care in estimating the weight, especially when one considers the smaller amount involved. • Trip 4 – I am not satisfied the logged/hailed weight was inaccurate.

Assuming the reasonable accuracy of the DSM calculation, the logged/hailed weight was 10 % lower than the actual weight. I am not persuaded that, in the circumstances, this discrepancy reflects a lack of precision and care in estimating the weight, especially given the large quantity of halibut and the evidence that there was a storm. • Trip 5 – I am satisfied the logged/hailed weight was inaccurate. The logged/hailed weight was 27.6 % higher than the landed weight.

In the circumstances, this discrepancy reflects a lack of precision and care in estimating the weight. • Trip 7 – Without incorporating the seized halibut, I would not be satisfied that the logged/hailed weight was inaccurate. Assuming the reasonable accuracy of the DSM calculation, the logged/hailed weight was 8.5% higher than the landed weight.

I am not persuaded that, in the circumstances, this discrepancy reflects a lack of precision and care in estimating the weight. • Trip 7 with added seizure – If I conclude that the 9,400 pounds (converted weight) from the June 12 th seizure was retained onboard the Ivy Lew after the monitored offload, then the discrepancy is much greater. The logged/hailed weight was 30.5 % lower than the landed weight.

I would be persuaded, in all the circumstances, that the discrepancy reflects a lack of precision and care in estimating the weight and the logged/hailed weight is inaccurate. [ 115 ] I am also satisfied beyond a reasonable doubt that Casey Henneberry was the Captain during these trips, that he made the inaccurate entries in the log, is responsible for the inaccurate hail, and by doing so violated the two conditions of the licence. [ 116 ] Therefore, I find Casey Henneberry guilty of counts 5 and 6 based on the inaccurate log/hail of cod and hake for trip 3 and halibut for trip 5.

If necessary, I will revisit trip 7 after providing my reasons for Count 4. [ 117 ] The corporate licence holder, Law Fisheries, is responsible for ensuring that the conditions of the licence are complied with regardless of who the Captain is, so I will also consider whether the logged/hailed weights for trip 6 are accurate.

For this trip, I have no information about the experience of the Captain in general or with the Ivy Lew specifically. [ 118 ] Again, relying on the same analysis and taking into account the different numbers and circumstances, I have concluded that: • Trip 6 – I am satisfied the logged/hailed weight was not reasonably accurate for both halibut and hake. The logged/hailed weight for halibut was 19.5% over the landed weight. The logged/hailed weight for hake was 39.4 % under the landed weight.

In the circumstances, these discrepancies reflect a lack of precision and care in estimating the weight. [ 119 ] Law Fisheries does not dispute that it held the licence and was responsible for ensuring the conditions of the licence were followed. There is no evidence of any system of oversight by Law Fisheries and they have not shown that the licence violations were committed without their knowledge or consent. So, applying s. 78.4 of the Fisheries Act , I find Law Fisheries guilty of counts 5 and 6 in relation to trip 3 (for cod and hake), trip 5 and trip 6.

If necessary, I will revisit trip 7 once I consider Count 4. Count 4 - Unmonitored Offloads [ 120 ] Count 4 alleges a failure to comply with a condition of a licence by not having the weight and species of all ground fish landed from the Ivy Lew verified by a dockside observer on March 17, May 8 th and June 11/12 of 2020. The Crown argues that each of these instances involves an unmonitored offload that preceded or followed a monitored landing. [ 121 ] I am satisfied that no Hail-In was done for any of these dates and that no DSM was present on the dock other than those relating

to the monitored landings. In addition to the evidence of fisheries officers who were conducting surveillance which I will review in some detail later, that conclusion is based on the evidence of Gregory Croft who reviewed records of DFO and produced Ex. 4 and Ex. 5. [ 122 ] Mr. Croft’s duties as program coordinator included overseeing the at-sea observer and dockside monitoring program, including the designation of the companies that provided those services.

He has access to DFO records for hail-outs, log books, and hail-ins, including the FOIP. [ 123 ] He testified that when a Hail-In is received by the DSM company, they input the information into the FOIP. Their service standard for entry is 15 minutes. The company also scans their paper copy of the Hail-In and the DSM forms, including the Tally, and send them to him on a cd or USB once per month.

These scans are kept on an encrypted hard drive in his office and he is the only person with access. [ 124 ] He reviewed DFO records, including the FOIP system, searching for records relating to the Ivy Lew for the time period in question. He was specifically asked to search through FOIP and his own records for March 17, 2020, May 7 – 8, 2020 and June 11-12, 2020. He searched those dates and one day on either side by vessel registration, licence number and the FIN.

He found no record of any Hail-In or other documents other than those contained in his Affidavits which relate to the monitored landings (Ex. 4 and 5). He testified that the technology and computer systems were working and that if there had been documents, he would have found them. [ 125 ] He was asked about the possibility that the DSM company had failed to send the documents and said that it was possible they had not sent the Tallies but that the ‘Hail-In’ would be in the database and his search would have found them which would have shown a missing scan, prompting him to go ask.

This did not happen. [ 126 ] So, the remaining issues are whether there was in fact a landing of groundfish from the Ivy Lew on any of those dates, whether Casey Henneberry was responsible as the Captain/vessel operator, whether Law Fisheries is responsible as the licence holder, and whether Mr. Zakhour is guilty as a principal or party. March 17, 2020 [ 127 ] The alleged landing on March 17, 2020 follows trip 4.

The records for that trip (Ex. 15, Tab 4) show that Captain Henneberry sailed out of Sambro on March 1 st , hailed in to Canso out of a storm on March 7 th without offloading, hailed out of Canso on March 7 th and then hailed in to Sambro on March 16 th with an updated offload date and time of March 17 th at 9:00 a.m. That offload proceeded at the Port of Sambro and was monitored by a DSM.

There is evidence of more than one wharf in Sambro and the documents do not specify which wharf the monitored offload occurred at. [ 128 ] As I said, I am satisfied that there was no other Hail-In for that trip or for the Ivy Lew during that time period, so no other DSM was dispatched. [ 129 ] The Crown alleges that a subsequent unmonitored offload took place later that day, between approximately 8:00 p.m. and 9:30 p.m. The Crown theory is that, after the monitored offload, Captain Henneberry retained halibut on the Ivy Lew to offload later without a DSM.

As such, even if he was not personally present for the unmonitored offload, he facilitated it and aided because he made the arrangements for the earlier monitored offload and would be responsible for the retained catch. [ 130 ] For the following reasons, I am not satisfied that halibut was offloaded from the Ivy Lew during the evening of March 17, 2020. In

summary, I accept that FO MacLean observed halibut being moved on the wharf but not that it was being removed from the Ivy Lew. [ 131 ] I find that the DSM checked the hold of the Ivy Lew after the monitored landing which was completed at 11:30 a.m. on March 17, 2020 and the holds were empty. FO Belvin testified the DSM has the right to inspect the hold and prior to Covid were required to. She said this was suspended after March of 2020, due to Covid. The Tally Document for trip 4, shows that the DSM circled “yes” next to “Was the hold checked after offload?” (Ex. 15, p. 33).

FO Belbin confirmed the plain meaning of this, that it means the DSM had checked the hold after the offload. [ 132 ] The evidence of a possible unmonitored offload comes from FO MacLean who conducted surveillance in Sambro between 8:00 p.m. and 9:30 p.m. on March 17, 2020. He testified that he made observations using binoculars and a spotting scope, weather conditions impacted his visibility at the beginning but for most of the time he had a clear view. He saw the Ivy Lew tied up at the Basinview Wharf in Sambro.

He saw a vehicle arrive with a trailer, the trailer was moved onto the wharf which was closer to the vessel and its doors were opened. When the doors were opened, he saw boxes inside the trailer which in his experience are typically used to store fish. Over a period that exceeded an hour, he saw objects which he believed were halibut being thrown. Initially, in direct-examination, he said he saw the halibut being thrown from the Ivy Lew onto the wharf. Later in direct, he clarified that he could not see the deck of the Ivy Lew because his view was obstructed, but saw people getting on and off the vessel.

In cross-examination, he agreed that he saw halibut being thrown from the vicinity of the Ivy Lew and landing on the wharf so inferred or assumed that they were coming from the Ivy Lew. He then saw the halibut being moved from the wharf into the trailer and someone shoveling what he believed to be ice into the back of the trailer. [ 133 ] I accept that the fish he observed being moved were halibut. He had been a fishery officer since 2014 and during that time had conducted numerous inspections of vessels and halibut - dozens of inspections and thousands of fish.

He and other fisheries officers testified that halibut have a unique appearance. They are the largest member of the flat fish family, have a distinctive bright white underbelly and dark over and are flat, long and oval with a square / diamond shape tail. [ 134 ] After approximately an hour of watching halibut being moved, a pick-up truck backed into the wharf area, the driver connected the trailer to the truck and drove away.

After that, another truck drove onto the wharf, backed up to near the vessel and about a dozen halibut were thrown onto the back of the truck along with other objects that appeared to be oil gear. Then another truck arrived and both trucks left.

[ 135 ] He could not identify any of the people he observed. [ 136 ] FO MacLean was cross-examined extensively on his observations, including his ability to make observations from his vantage point. After his specific location was disclosed and investigated by Defence, he acknowledged that his position was at least twice as far from the wharf as he had originally estimated. He originally estimated his distance at 200 yards but agreed it was more like 450 metres. He testified he was using binoculars and a spotting scope, but I have no evidence of the magnification of those devices.

He acknowledged that the lighting at the wharf was not ideal, that snow interfered with visibility during the early part of his observations and his view of the Ivy Lew’s deck was obstructed. [ 137 ] I do not accept that halibut was retained onboard the Ivy Lew after the monitored offload. The evidence is that the Ivy Lew’s holds were checked at 11:30 a.m.. I infer the holds were empty at that time or there would be some further comment, report or action. The Crown suggests that a substantial quantity of halibut would have been offloaded during the unmonitored offload.

The photographs and video of the interior of the Ivy Lew do not show any location where a substantial quantity of halibut could be hidden from a DSM inspection (Ex. 17, 32). [ 138 ] There is no direct evidence that Casey Henneberry stayed with the Ivy Lew after the monitored offload or that he was present on the wharf in the evening.

As such, the Crown has not proven that Casey Henneberry was involved in any unmonitored offload. [ 139 ] If there was an unmonitored offload, the licence holder could still be liable. [ 140 ] The Crown argues that under the licence conditions offloading any groundfish without a DSM is prohibited. So, even if the halibut were not retained after the monitored offload, even if it was previously legally offloaded and was being moved from one wharf to another, it would be a violation of the conditions requiring the presence of a DSM.

I do not have to consider that argument because I am not persuaded on the evidence that the halibut observed by FO MacLean on March 17 th , 2020 was being removed from the Ivy Lew as opposed to being moved on the wharf area. [ 141 ] I say that because there is no evidence as to how any halibut came to be onboard the Ivy Lew and because of the frailties of FO MacLean’s observations. [ 142 ] There is no surveillance evidence of what the Ivy Lew was doing during the intervening 8 hours. There is evidence from the VMS, including the raw data and maps created by Sean Butler (Ex. 15 Tab 4, p. 34; Ex. 19, p.4).

It appears that the data includes the Ivy Lew’s movements, as GPS co-ordinates, during this time period. However, Mr. Butler was not asked about this time period and neither Crown nor Defence referred to this evidence in their arguments.

Therefore, while it seems likely that this information would shed some light on the Ivy Lew’s movements, in the absence of assistance from a witness or submissions, it would be dangerous for me to interpret the data or draw inferences from it. [ 143 ] I have no evidence that that the Ivy Lew fished during that period so had a new catch of halibut onboard, no evidence that she offloaded part of the catch somewhere prior to the monitored offload and went back to get it in the intervening period, and no evidence that she moved fish from another wharf to the wharf where FO MacLean made his evening observations. [ 144 ] Given the limits on FO MacLean’s ability to observe, including the distance, and his own admission that he did not specifically see halibut leaving the Ivy Lew, his evidence does not persuade me that groundfish were removed from the Ivy Lew.

His observations are equally consistent with fish being moved from one part of the wharf to the trailer. [ 145 ] As such, I am not convinced beyond a reasonable doubt that there was a violation of the DSM condition on March 17, 2008. May 8, 2020 [ 146 ] The alleged unmonitored offload on May 8, 2020 precedes the monitored landing for trip 6.

The records for that trip (Ex. 15, Tab 6) show that Christopher Forbes hailed out on April 22 nd , Captain Chris Forbes signed the Monitoring Document reporting the catch for the period April 25 th to May 6 th and Andy Henneberry called in the hail on May 7 th with an estimated offload date and time of May 8 th at 9:00 a.m.

That offload proceeded at the Port of Sambro and was monitored by a DSM. [ 147 ] I am satisfied that there was no other Hail-In for that trip or for the Ivy Lew during that time period, so no other DSM was dispatched. [ 148 ] For the following reasons, I am persuaded beyond a reasonable doubt that on that date, halibut was landed from the Ivy Lew without being verified by a DSM. However, I am not persuaded that Casey Henneberry was part of it. In

summary, as I previously stated, I am not persuaded that he was the Captain for that trip. I did, however, consider whether the Crown had proven that he was the vessel operator or otherwise present at the specific time of the alleged unmonitored offload.

Given the frailties of the identification/recognition evidence, I am not so satisfied. [ 149 ] The evidence connecting Casey Henneberry to the events on May 7, 2020 relies on identification offered by FO MacLean who testified he recognized him from previous dealings. [ 150 ] This requires me to consider the law relating to recognition evidence (where a witness recognizes someone who is previously known to him) and pure identification evidence (where a witness is asked to identify a stranger never seen by him before). [ 151 ] The law was summarized by our Court of Appeal in R. v. Downey ( 2018 NSCA 33 ).

In that case, the Court accepted that many of the same concerns still exist when dealing with recognition evidence and courts still have to treat the evidence cautiously. However, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence. [ 152 ] The inherent dangers of identification evidence are well recognized. Cases involving wrongful convictions are full of honest but

mistaken identification evidence. In assessing FO MacLean’s evidence I have to consider both his credibility and the reliability of theevidence. Even if I were to find that he honestly believed he saw Casey Henneberry,

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