R. v. Rideout, 2014 NLCA 29

Date: 20140814 Docket: 14/15 Citation: R. v. Rideout , 2014 NLCA 29 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JAMIE RIDEOUT APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Barry and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201306G0024 (2014 NLTD(G) 27) Appeal Heard: June 10, 2014 Judgment Rendered: August 14, 2014 Reasons for Judgment by Hoegg J.A. Concurred in by Barry J.A. Dissenting Reasons by Rowe J.A. Counsel for the Appellant: Donald A. MacBeath Q.C. Counsel for the Respondent: Paul Adams

Hoegg J.A.: Introduction [1] A judge of the Provincial Court of Newfoundland and Labrador convicted Jamie Rideout of retaining undersized whelkcontrary to section 22(7) of the Fishery (General) Regulations, SOR/93-53. Mr. Rideout appealed to the Supreme Court ofNewfoundland and Labrador (General Division) sitting as a

Summary Conviction Appeal Court (SCAC), and a justice of that Courtallowed his appeal from conviction and remitted the matter to the Provincial Court for a new trial. [2] Mr. Rideout appeals to this Court on the ground that the SCAC judge erred by remitting the matter for a new trial instead ofacquitting him. Leave to Appeal [3]

Section 839 of the Criminal Code stipulates that appeals to this Court from decisions of a SCAC require leave:

(1) Subject to subsection (1.1), an appeal to the court of appeal as defined in

section 673 may, with leave of that court or a judgethereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal. [4] The requirements to be established in order for leave to be granted are set out in Newfoundland Recycling Limited v.Newfoundland and Labrador (Attorney General), 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153, at paragraph 9: Thus, to obtain leave to appeal pursuant to s.839(1): (

a) the appeal must “be taken on a ground that involves a question of law alone”, and (

b) the ground(

s) of appeal must be such that: (

i) either the ground of appeal has a “reasonable possibility of success”, or (ii) “the proposed question of law [has significance] to the administration of justice”. [5] Section 686(2) of the Criminal Code stipulates that a court of appeal must either acquit the defendant or order a new trial whenit allows an appeal against conviction. Mr. Rideout’s appeal concerns the application of section 686(2) to the facts of his case, therebyengaging the question of when an acquittal, as opposed to a new trial, ought to be ordered when an appeal from conviction is allowed. Accordingly it raises a question of law.

This question of law is significant for the administration of justice because it is important forpeople to know what remedies can potentially result when conviction appeals are successful. I am therefore satisfied that the granting ofleave is warranted in this case. Background [6] A violation of section 22(7) of the Fishery (General) Regulations is a strict liability offence. Strict liability offences do notrequire proof of a guilty mind.

Rather, once the actus reus of such an offence is established, a defendant can avoid liability if he or sheestablishes that he or she took all reasonable steps to avoid the activity leading to the charge (R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299). This burden on a defendant is known as the defence of due diligence. (See also R. v. Alexander(1999), (NL CA), 171 Nfld. & P.E.I.R. 74, at para. 18 and R. v. Ralph (S.), 2007 NLTD 164, 270 Nfld. & P.E.I.R. 1(paras. 15 and 16) and 2008 NLCA 70.) [7]

Section 78.6(

a) of the Fisheries Act, RSC 1985, c. F-14 (the Act) specifically permits reliance on the defence of due diligencefor alleged violations of the Act: 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 … [8] In this case, fisheries officers gave unchallenged evidence that they examined six bags of Mr. Rideout’s whelk catch and found21.5% of it to be undersized. This evidence established the actus reus of the offence. It then fell to Mr. Rideout to establish duediligence on the balance of probabilities, if he chose to avail of the defence. [9] Mr. Rideout did choose to avail of the defence.

He testified that he sorted the size of his whelk catch by using a grading tablemade for that purpose by a local business, and that the use of such grading tables was the sorting practice of whelk fishers in theprovince. He acknowledged that the grading table did not cull all of the undersized whelk and said that sometimes it even culled legalsized whelk to be returned to the water. [10] The trial judge accepted Mr. Rideout’s testimony as credible and reliable. Nevertheless, he found that Mr. Rideout did notmake out the defence of due diligence and convicted him.

[11] Mr. Rideout appealed his conviction to the SCAC, arguing that the trial judge erred in failing to allow his defence of duediligence. The SCAC judge allowed Mr. Rideout’s appeal, saying at paragraph 39: The trial judge set too high a standard for Mr. Rideout to meet to show that he took reasonable care to avoid retaining undersized whelk. Mr. Rideout need only have shown that he took all reasonable steps to avoid committing the offence. He did not have to measure eachwhelk individually; that would have been practically impossible to accomplish. It may result that there is no other method than the onethat Mr.

Rideout relies on to cull whelk for size. If so, that method should not be rejected as inadequate; or it may result that no methodexists to avoid committing the offence. In both instances, and for any others that may emerge on the evidence, Mr. Rideout’s efforts tocomply with the licence restriction have to be measured against the standard of reasonable care, not against a higher standard that he isrequired to meet. The SCAC judge set aside Mr. Rideout’s conviction and remitted the matter to Provincial Court for a new trial before a different judge. Analysis Due diligence [12] The Supreme Court in Sault Ste.

Marie described the “due diligence defence” as “taking all reasonable steps to avoid theoffence” (page 1326). Shortly thereafter, the Court elaborated on the meaning of due diligence in R. v. Chapin, (SCC),[1979] 2 S.C.R. 121. At page134, the Court explained that “an accused may absolve himself on proof that he took all care which areasonable man might have been expected to take in the circumstances, or in other words, that he was in no way negligent.” [13] In Alexander, this Court considered the defence of due diligence in the context of an offence under the Waste Material DisposalAct, RSN 1990, c. W-4.

Green J.A., as he then was, explained it at paragraph 18: The defence of due diligence requires the acts 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 simply to act reasonably in the abstract or to take care in a general sense. In R. v.

Kurtzman (1991), (ON CA), 50 O.A.C. 20; 4 O.R.(3d) 417 (C.A.), Tarnopolsky, J.A., observed at p. 429 that “The due diligence defencemust relate to the commission of the prohibited act, not some broader notion of acting reasonably.” … An Acquittal or a New Trial? [14] The basis on which the SCAC judge allowed Mr. Rideout’s appeal was that the trial judge had applied “too high” or “tooexacting” a standard of due diligence to the evidence of Mr. Rideout’s actions. In other words, the SCAC judge determined that the trialjudge applied the wrong law to the evidence. However, Mr.

Rideout asserts that in addition, the SCAC judge effectively decided thatthere was no trial evidence on which a properly instructed trier of fact could convict, and that therefore he ought to have acquitted Mr.Rideout rather than remitting the matter for a new trial. In this regard Mr. Rideout relies on the SCAC judge’s comments at paragraph39 of his decision included in paragraph 11 above, respecting measuring individual whelk and whether there are other methods of cullingwhelk for size.

The Law [15] Subsection 686(2) of the Criminal Code sets out an appellate court’s remedial options when it allows an appeal fromconviction: Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (

a) direct a judgment or verdict of acquittal to be entered; or (

b) order a new trial. [16] The circumstances in which it is appropriate to order a new trial on a successful appeal from conviction were considered by theSupreme Court in R. v. Pittman, 2006 SCC 9, [2006] 1 S.C.R. 381 and more recently in R .v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60. This Court, in R. v. C.D.G. (1995), (NL CA), 128 Nfld. & P.E.I.R. 312 (Nfld. C.A.), and more recently in R. v. S.L.C.,2011 NLCA 19, 304 Nfld. & P.E.I.R. 159 and R. v.

Bussey, 2014 NLCA 18, has also considered the issue. [17] In Pittiman, the Supreme Court considered subsection 682(2) of the Code in the context of an appellant’s argument that heought to be acquitted because the jury verdicts at his trial were inconsistent and therefore his conviction was unreasonable.

In discussinga dissenting appeal court judge’s decision to acquit the accused following his successful appeal from conviction, Charron J. addressedthe fairness question inherent in the issue: I would add that, in focussing on the acquittals of the co-accused and what he described as “the fairness issue”, Borins J.A. erred furtherin concluding that the appellant should also be acquitted without considering whether such an order would be appropriate in thecircumstances.

Section 686(2) of the Criminal Code provides that where a court of appeal allows an appeal from conviction, it maydirect an acquittal or order a new trial. Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, thecourt of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal. As noted by Doherty J.A. inR. v. Harvey (2001), (ON CA), 160 C.C.C. (3d) 52 (Ont.

C.A.), at para. 30, “[a]n acquittal is the appropriate orderbecause it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier offact could convict.” … In the result, the Court dismissed Mr. Pittiman’s appeal, saying, “[W]here the verdict is found to be unreasonable on the basis ofinconsistency of verdicts, but the evidence against the appellant supported the conviction, the appropriate remedy will be a new trial”(paragraph 14).

[ 18 ] In Roy , the Supreme Court allowed an accused’s appeal from a conviction of dangerous driving causing death. Mr. Roy had pulled out from a stop sign at a difficult intersection in poor visibility and an accident ensued. He was convicted at trial and his appeal to the Court of Appeal was dismissed.

In allowing his appeal, Justice Cromwell described the evidentiary record as disclosing “a single and momentary error in judgment with tragic consequences” which did “not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious offence of dangerous driving.” [ 19 ] At paragraph 53 of Roy , Cromwell J. set out the legal test to be applied when a court is deciding whether to acquit or order a new trial: … The decision as to what order to make turns on whether there is any evidence upon which a properly instructed trier of fact could have convicted.

If there is not, then generally entering an acquittal is the appropriate course (see R. v. MacNeil , 2009 NSCA 46 , 277 N.S.R. (2d) 22 (N.S. C.A.), at paras. 16-18 ; R. v. S. (D.C.) , 2000 NSCA 61 , 184 N.S.R. (2d) 299 (N.S. C.A.) at paras. 46-50 ). … [ 20 ] In C.D.G. , this Court allowed an accused’s appeal from convictions for sexual assaults and remitted the matter for a new trial, saying, at paragraph 82: From that vantage point, it is apparent that the trial judge’s disregard of important evidence in this case is attributable to errors of law.

These errors do not afford bases of acquittals, however, since, if they had not been made, the possibility still exists that a properly instructed trier of fact might still, but not necessarily, convict. In such a situation it is the duty of a Court of Appeal, in setting aside verdicts under s. 686(1)(a)(ii), to order a new trial. [ 21 ] Likewise, in S.L.C. this Court allowed the accused’s appeal from a sexual assault conviction and remitted the matter for a new trial.

In so doing, Green C.J.N.L. stated, at paragraph 51: … if the jury had been properly instructed it would have been theoretically possible that the jury could nevertheless have determined that absence of consent had not been proven beyond a reasonable doubt. In light of the complicating factor of the erroneous jury instruction, therefore the appropriate remedy here is to order a new trial. [ 22 ] As well, in Bussey , this Court allowed the defendant’s appeal from conviction for speeding in a construction zone.

In remitting the matter for a new trial, Welsh J.A. stated at paragraph 21: In the circumstances, it cannot be determined how the explanatory evidence … may have affected the outcome of the trial. Since an acquittal is not the only possible verdict, a new trial is required. [ 23 ] Accordingly, in order for Mr. Rideout’s argument to succeed, there would have to be no evidence on which a properly instructed trier of fact, acting reasonably, could convict him. That is to say, if the record discloses evidence on which a properly instructed trier of fact, acting reasonably, could convict Mr.

Rideout, then the SCAC judge committed no error in remitting the matter for a new trial. Analysis [ 24 ] Twenty-one and one-half percent of the whelk in the six bags examined by the officer was undersized. This uncontroverted evidence established the actus reus of the offence. And, if Mr. Rideout had not asserted the defence of due diligence, this evidence would support a conviction. [ 25 ] As indicated in paragraph 12 above, Mr. Rideout had the burden to prove to the Court that he took all reasonable steps to avoid committing the offence. It is not the Crown’s burden to demonstrate what Mr.

Rideout ought to have done and did not do. [ 26 ] Mr. Rideout testified that he used a grading table to cull the undersized whelk he caught and that the same kind of grading table was used by other whelk fishers in the province. His evidence on this point could be described as evidence of the industry standard, and it was accepted as credible. However, evidence of the industry standard, while relevant, does not determine the issue. The issue is the legal standard, not the industry standard. (See Her Majesty the Queen v. General Scrap Iron & Metals Ltd., 2003 ABCA 107 , para. 10 ).

Perhaps the industry standard may not be good enough to meet the legal standard. In any event, because most or even all other fishers cull whelk by using a certain kind of grading table does not necessarily equate to “taking all reasonable steps to avoid committing the offence”. Just as a speeder cannot be absolved of responsibility for speeding because most other drivers speed, a whelk fisher is not necessarily absolved of retaining undersized whelk because he uses the same culling method as most other whelk fishers.

It is open to be determined whether use of the industry standard grading table is an effective way to cull undersized whelk. Perhaps it is not effective because its holes are unreasonably small. [ 27 ] It could also be that Mr. Rideout’s use of the grading table may not have been reasonable. For example, if too many whelk are placed on the grading table at one time, the grading sieve could miss the undersized ones. Mr. Rideout testified that he knew the grading table was not accurate.

Reliance on a grading table that is known to be inaccurate is a factor to be considered in determining whether the legal standard is met. As well, the record suggests that a fisher must pay some attention to the whelk being sieved. If too many undersized whelk placed on the grading table remain on it, relocation to another fishing ground where a higher proportion of whelk is of legal size may be required to meet the legal standard. [ 28 ] This is not to say that a new trial judge, applying the correct standard of due diligence to the evidence in this case, must convict Mr. Rideout.

Rather it is to say that given the uncontroverted retention of undersized whelk, there is evidence relating to the type of and particular grading table used and the manner of its use on which a trier of fact, acting reasonably, could convict. Evaluation of this evidence in the context of the whole of the evidence, informs the ultimate question of whether Mr. Rideout took all reasonable steps to avoid retaining undersized whelk. In remitting the matter for a new trial, the SCAC judge recognized that applying the correct law to such a consideration of the evidence is properly the province of the trial judge.

[ 29 ] This case is different from the Roy case. In Roy , once the test for dangerous driving was correctly stated, there was nothing left in the evidentiary record for a trier of fact to do but enter an acquittal because there was no evidence of dangerous driving. In this case, review of the evidentiary record does not obtain the same result. [ 30 ] The SCAC judge’s obiter comment at paragraph 39 of his judgment respecting the impracticality of measuring individual whelk addresses only one aspect of how whelk can be culled.

He went on to correctly observe that the outcome of a new trial at which the correct law respecting due diligence would be applied may or may not obtain a different result from the trial judge’s conviction. Disposition [ 31 ] In

summary, the SCAC judge did not err in remitting the matter to the Provincial Court for a new trial. His order stands. Accordingly, I would dismiss Mr. Rideout’s appeal. L. R. Hoegg J.A. I Concur: L. D. Barry J.A. Dissenting Reasons by Rowe, J.A.: [ 32 ] I have read the reasons of my sister Hoegg. I agree with her statement of the law and her analysis up to paragraph 25.

Thereafter, I disagree. [ 33 ] It is important to recall that while the retention of a single under-sized whelk would constitute an offence under the Regulations, the evidence was that, as a matter of practice, DFO inspectors do not lay charges unless more than 20% of the catch is under-sized. This recognizes the practical reality that some capture of under-sized whelk is unavoidable. Mr. Rideout’s catch was 21.5% under-sized, just over the DFO 20% rule. Thus, there was nothing to suggest a flagrant disregard of the DFO rule. [ 34 ] More central to the issue is what more could Mr. Rideout have done?

He used a grading table, which is what others in the industry use. Adhering to the industry standard is what one would expect from the ordinary diligent person. Could Mr. Rideout have done more and examined his catch at sea to verify that the grading table was achieving DFO’s goal of no more than 20%? Yes, but, would it be reasonable for him to do so? [ 35 ] Context is important. Fishing is a hard way to make a living. It involves expense, long hours, much work and considerable uncertainty. On the evidence, Mr. Rideout did what others do to seek to operate within the rules.

While I agree with Justice Hoegg’s statement in paragraph 26 that adherence to an industry standard is not sufficient in every case, in the circumstances of this case it is. Due diligence does not require a party to take unreasonable steps or employ extraordinary measures. [ 36 ] On the day of the inspection, a grading table that Mr. Rideout and others use resulted in 1.25% more under-sized whelk than DFO calls for. Mr. Rideout made a genuine effort to adhere to the rules, but on the day in question it did not work out; ill fortune, rather than a want of due diligence, put him slightly over DFO’s rule.

I do not see how a conviction could properly be entered on the evidence. [ 37 ] I would have allowed Mr. Rideout’s appeal and acquitted him. ______________________________ M. H. Rowe J.A.