R. v. Rupp Date:, 2015 BCPC 301

Citation: R. v. Rupp Date: 20151030 2015 BCPC 0301 File No: E48337 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GERALD JAMES RUPP REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: S. Simpson Counsel for the Defendant: R.F. Johnston and S. Irving Place of Hearing: Nanaimo , B.C. Dates of Hearing: April 21, 22, July 31, October 30, 2015 Date of Judgment: October 30, 2015

The Issue [ 1 ] Mr. Rupp is charged with fishing for salmon with a barbed hook, contrary to

section 49 of the British Columbia Sport Fishing Regulations, 1996 SOR96-137 (“the Regulations ”). Mr Rupp admits that he was fishing with a barbed hook, but denies that he was fishing for salmon. He says that he was fishing for rockfish. At the time and place where he was fishing, the Regulations forbade the use of barbed hooks when fishing for salmon and permitted the use of barbed hooks when fishing for other species. The Evidence [ 2 ] On August 30, 2014, two fisheries officers, Mr. Tadei and Mr.

Pawloski, were on patrol in a Department of Fisheries & Oceans (“DFO”) patrol boat in Horswell Channel, near Nanaimo, British Columbia. They observed Mr. Rupp and a group of 3 - 4 other people in Mr. Rupp’s boat. Mr. Rupp and his boat were familiar to them because Mr. Rupp carries on business as a sports fishing guide. Mr. Rupp’s boat had two fishing lines in the water, one on each side. Mr. Tadei and Mr. Pawloski brought their patrol boat alongside Mr. Rupp’s boat and asked him to reel in the fishing line on the starboard side to allow Mr. Pawloski to board Mr. Rupp’s boat. Mr. Rupp complied with that request.

When the line was reeled in, Mr. Tadei asked Mr. Rupp to hand him the lure at the end of the line. Mr. Rupp did so. The lure had a barbed hook. Mr. Pawloski boarded Mr. Rupp’s boat. He asked to see the sport fishing licenses of those who were fishing. Mr. Rupp replied that he was the only one who was fishing and showed Mr. Pawloski his license. Mr. Pawloski asked Mr. Rupp what he was fishing for, and Mr. Rupp replied “rockfish”. Mr. Pawloski observed that: a. the downrigger attached to the port-side fishing line indicated that 100 feet of line were out; b. the depth sounder aboard Mr.

Rupp’s boat indicated a water depth of 199 feet; c. there were two fresh chinook salmon and one fresh sockeye salmon in the fish locker in the stern of Mr. Rupp’s boat. While Mr. Pawloski was making his observations aboard Mr. Rupp’s boat, Mr. Tadei checked the depth sounder on the DFO boat. It indicated a water depth of 199 feet. Mr. Pawloski asked Mr. Rupp to reel in the port-side fishing line. Mr. Rupp complied with that request. When the lure at the end of the line came aboard, a juvenile coho salmon was on the hook. Mr. Rupp shook it off the hook and dropped it back in the water.

The hook was barbed. [ 3 ] The evidence does not provide an estimate of the time span over which the events described in paragraph 2 occurred, but it must have been a few minutes. During that time, the two vessels travelled slowly, side by side, on a circular course. At the end of the sequence of events described in paragraph 2, Mr. Tadei pressed an icon on the DFO vessel’s navigation equipment, causing the equipment to mark the vessel’s location electronically on an electronic chart of the area. The sounding indicated by the chart at that location is 56 metres (a little over 183 feet). [ 4 ] Mr. Pawloski and Mr.

Tadei acknowledge that: a. other species of fish live in Horswell Channel, and that many sports fishers fish for those other species in those waters; b. some of those species live and feed at depths of 100 feet or so. However, they point out that rockfish live and feed on the bottom. A person fishing for rockfish, they say, would not trail his lure 100 feet above the bottom. The Crown’s difficulty is that neither Mr. Tadei nor Mr. Pawloski was tendered or accepted as an expert witness. For that reason, their evidence as to the habits of rockfish and fishing practices in relation to rockfish is not admissible.

Similar evidence was offered by Mr. Wicks, a witness called by Mr. Rupp. However, Ms. Simpson objected to the evidence of Mr. Wicks, on the ground that no notice had been given of his opinion evidence. I sustained that objection, and excluded his evidence. The trial was then adjourned for three months. [ 5 ] When the trial resumed, Mr. Johnston and Mr. Irving had been retained, and assumed conduct of the defence. They called Mr. Tutty, who was tendered and qualified as an expert in sports fishing practices. Mr. Tutty says that: a. The rods and lures used by Mr.

Rupp on the day in question are suitable for trolling for either rockfish or salmon, and are commonly used when fishing for either species. b. Horswell Channel is a place where herring breed, spawn and live in abundance. As a result, it is a fertile fishing ground for other species, including salmon and rockfish, which feed on herring. While it is true that rockfish live on the bottom, their feeding habits depend on where their prey are found. In places like Horswell Channel, where herring are found at all depths in the water column, the rockfish ascend to feed, and so may be caught at any depth. c.

In Horswell Channel, the only difference in fishing technique when fishing for rockfish, rather than salmon, is that one trolls at a slower speed when trolling for rockfish. That is so for two reasons: (

i) Rockfish are slower swimmers, and find it difficult to catch a lure trolled at salmon-speed. (ii) When trolled at salmon-speed, the lures effectively mimic the appearance of feeding salmon, and so attract salmon seeking to compete for the same prey. When trolled at slower speed, the mimicry is less effective, and the lure is less attractive to salmon. One can catch a salmon when trolling at any speed. It is very unusual to catch a rockfish when trolling at salmon-speed. d. “You never know what you are going to catch. You just reel in whatever bites.” d. Generally, one would troll for rockfish in Horswell Channel in the lower third of the water column. However, one would troll at

lesser depths if that is where the herring are. e. If, as often happens, one catches a salmon with a barbed hook while trolling for rockfish, the practice is to throw it back. [6] Mr. Rupp gave evidence. He said that: a. On the day in question, he was guiding a party of sports fishers. b. Earlier in the day, they caught 30 - 40 salmon, using the rods and reels which were in use when the DFO officers boarded hisboat, but with barbless hooks. They released all of the salmon except the three found in the locker. c.

One of his clients became seasick, so they decided to troll for home, which would mitigate the motion of the boat. d. One of the other clients expressed a strong desire to catch a rockfish, so Mr. Rupp changed the lines to barbed hooks and trolledthrough Horswell Channel, where they encountered the DFO officers. e. At and after the time when he changed the gear to barbed hooks, it was his purpose and intention to catch rockfish, not salmon. f. On previous occasions, he has caught both salmon and rockfish at all levels of the water column in Horswell Channel. g.

He has fished for salmon in Horswell Channel on many occasions over many years. In 2014, he caught more than 100 salmon inHorswell Channel. h. If he caught a salmon with a barbed hook, he would immediately release it, as he did the juvenile salmon which the DFO officersfound on his line on the day in question. [7] There was some inconsistency in the evidence about trolling speeds for salmon and rockfish. Mr. Rupp said that he would trollfor salmon at 2 -3 knots, and for rockfish at 1.5 knots. He said that he was trolling at 1.5 knots when he was approached by the DFOofficers. Mr.

Tutty said that he would troll for salmon at 2 knots. He did not say at what speed he would troll for rockfish. In any case,these figures can only be rough approximations. Mr. Tutty pointed out that what matters is the speed of the boat (or lure) relative to thespeed of the water. If one is trolling down-current for salmon, one wants to troll at 2 knots faster than the speed of the current. So, inmaking his decision about how fast to troll, the fisher must estimate the speed of the current and attempt to adjust the speed of the boat soas to proceed at approximately 2 knots faster than the current.

In the absence of some very sophisticated technology (which is notsuggested to have been present in this case), errors in setting the speed of the boat are inevitable. [8] I cannot conclude, beyond a reasonable doubt, that Mr. Rupp’s evidence is false or inaccurate. Accordingly, he can beconvicted if, and only if, the facts as he recounted them support a conviction. Analysis [9] Mr. Rupp is charged under

section 78 of the Fisheries Act RSC 1985, c F-14, which renders it an offence to fail to comply withany provision of any of the regulations promulgated under the statute. The applicable regulation is

section 49 of the British ColumbiaSport Fishing Regulations, 1996 SOR 96-137 (“the Regulations”), which provides (underlining added): No person shall fish for salmon by a method or with a type of gear or bait set out in column I …. A barbed hook is one of the items of gear set out in column I. [10] Mr. Rupp says that he was not fishing for salmon because his intention and objective was to catch a rockfish, not a salmon. [11] Ms. Simpson replies that Mr. Rupp’s subjective intention or objective is irrelevant. She relies upon the judgment of JusticeDickson in R vs Sault Ste. Marie (SCC), [1978] 2 SCR 1299.

In that case, Justice Dickson said that there are threecategories of criminal offences (underlining added) 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved bythe prosecution either as an inference from the nature of the act committed, or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. …. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Justice Dickson then said (underlining added): Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the secondcategory. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if suchwords as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On theother hand, the principle that punishment should in general not be inflicted on those without fault applies.

Offences of absolute liabilitywould be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. Theoverall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and theprecision of the language used will be primary considerations in determining whether the offence falls into the third category.

[12] Ms. Simpson says that offences under the Fisheries Act are “public welfare offences”, and so fall into Justice Dickson`s secondcategory.

Chief Justice Dickson described “public welfare offences” as those “… which are not criminal in any real sense, but areprohibited in the public interest …”, and defined them in the following terms: Although enforced as penal laws through the utilization of the machinery of the criminal law, [public welfare] offences are in substanceof a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have butlimited application.

They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like…. [13] I agree with Ms. Simpson’s assertion that the offence with which Mr. Rupp is charged is a public welfare offence. As aconsequence, it is, prima facie, a strict liability offence. However, in this context, “prima facie” means only “presumptively”. Thepresumption may be rebutted by circumstances, by extrinsic evidence (such as Hansard) or by the language of the statute itself. [14] In this case, the offence is the act of fishing for salmon.

In ordinary English usage, to “fish for salmon” is to fish with theintention or objective of catching a salmon. It is true that the definition of the offence does not include any of the words "wilfully," "withintent," "knowingly," or "intentionally", but I do not think that Justice Dickson intended that catalogue to be exhaustive. The question isnot whether one of those words appears in the definition of the offence, but rather whether the definition, construed according to ordinaryEnglish usage, expressly incorporates a state of mind as a necessary element of the offence. In my judgment,

section 49 of theRegulations does. [15] I am fortified in that conclusion by

section 48 of the Regulations, which provides: No person shall catch and retain a salmon of a species set out in column I of

Schedule VI … the overall length of which is less than theminimum overall length set out in column II. There is no mental element to an offence under

section 48. The Crown need only prove that a person caught and retained an undersizedfish. The fisher’s objective or intention is entirely irrelevant. If the legislator had intended the same consequence under

section 49, itwould simply have provided: No person shall catch a salmon by a method or with a type of gear or bait set out in column I …. [16] Mr. Rupp says that it was his intention to release any salmon which he caught with a barbed hook. In my view, that is noexcuse for his conduct. If it were the legislator’s intention that catch-and-release be permissible under the Regulations,

section 49 wouldsimply provide: No one shall retain a salmon caught by a method or with a type of gear or bait set out in column I …. [17] Having concluded that proof of a state of mind is a necessary element of an offence under

section 49 of the Regulations, thenext question is the definition of the necessary state of mind. In so doing, I should have regard to Justice Dickson’s reference to “… thevirtual impossibility in most regulatory cases of proving wrongful intention”. [18] There has been some evolution of the concept of mens rea in the recent jurisprudence. That evolution was described by JusticeAllen in R vs Eby 2007 ABPC 81; 2007 AJ No. 306; [2007] 9 WWR 747 @ paragraphs 89 - 90.

Without attempting here any exhaustivediscussion of the various mental states which may support a conviction, depending on the character of the offence charged, it is clearthat a subjective intention to bring about the proscribed consequence (in this case, catching a salmon) is not a necessary element of everyoffence. It may be that a conviction under

section 49 of the Regulations could be supported by evidence of one of the less culpable statesof mind discussed in Eby. It is unnecessary for me to decide that issue because: a. Mr. Rupp was reckless in relation to the risk that he would catch a salmon; b. as Justice Dickson noted in Sault Ste.

Marie, recklessness is a sufficiently culpable state of mind to support a conviction in relation tomany offences which are “… criminal in the true sense …”; c. if, as was held in R vs Creighton (SCC), [1993] 3 SCR 3, recklessness is a sufficiently culpable state of mind tojustify a conviction for manslaughter, it must surely be sufficient to support a conviction for fishing salmon with a barbed hook. [19] Recklessness was defined by Justice McIntyre in R vs Sansregret (SCC), [1985] 1 SCR 570; 17 DLR (4th) 577;18 CCC (3d) 223 as follows: Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determiningcriminal liability.

Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate thetwo concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour byan act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition ofcriminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a partof the criminal mens rea, must have an element of the subjective.

It is found in the attitude of one who, aware that there is danger that hisconduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the

conduct of one who sees the risk and who takes the chance. It is in this sense that the term 'recklessness' is used in the criminal law and itis clearly distinct from the concept of civil negligence. It should be noted that neither objective mens rea nor recklessness is a purely objective concept. In either case, the question is not whata reasonable person would have known and foreseen, but rather what the accused, as an individual, knew and ought to have foreseen: Rvs Creighton @ paragraphs 39 - 44.

In R vs Buzzanga and Durocher (1979) (ON CA), 101 DLR (3d) 488; 25 OR(2d) 705, Justice Martin described recklessness as: … the subjective state of mind of a person who foresees that his conduct may cause the prohibited result, but, nevertheless, takes adeliberate and unjustifiable risk of bringing it about … [20] Having in mind that the offence with which Mr. Rupp is charged is a public welfare offence, and the virtual impossibility ofproving subjective mens rea in relation to such an offence, I do not think that the Crown carries the onus of proving that, at the time inquestion, Mr.

Rupp intended to catch a salmon. I think it sufficient for the Crown to prove, beyond a reasonable doubt, that Mr. Ruppwas aware that catching a salmon was a probable result of his conduct, and that he deliberately took the risk of catching a salmon with abarbed hook. [21] In this case, Mr. Rupp was, subjectively, well aware that he was likely to catch a salmon by fishing as and where he did. That issufficient to establish the mental element of the offence. [22] It is necessary to address three points raised by Mr. Irving in his submissions on behalf of Mr. Rupp: a. Mr. Irving refers to Mr.

Rupp’s evidence, to the effect that he was much more likely to catch a rockfish than a salmon in thecircumstances pertaining, and so suggests that Mr. Rupp was not reckless as to the risk of catching a salmon. Mr. Rupp’s evidence onthe point is not supported by Mr. Tutty. Fairly summarized, Mr. Tutty’s evidence was that the chances of catching salmon and rockfishwere roughly equal in the circumstances in question. I accept Mr. Tutty’s evidence. Even if I did not, I do not think it is a question ofprobabilities. A real likelihood of the prohibited result is sufficient to establish recklessness. b. Mr.

Irving points out that there is always some risk of catching a salmon in British Columbia tidal waters. The Regulations donot forbid all fishing with barbed hooks, but only fishing for salmon with barbed hooks. So, it cannot be that a risk of catching a salmonwith a barbed hook is sufficient to establish recklessness. If that were so, it would be reckless to fish anywhere in British Columbiacoastal waters with a barbed hook, and the permission to fish with such hooks for other species would be meaningless. The answer, inthis case, is that Mr.

Rupp knew that Horswell Channel was an excellent place in which to fish for salmon and that he was likely to catcha salmon by fishing as and where he did. The same result would not necessarily follow in relation to another fisher, less knowledgeableand skilled than Mr. Rupp, or in other waters, where salmon are less likely to be caught or with which Mr. Rupp was less familiar. It isthe high probability of catching a salmon in Horswell Channel, coupled with Mr. Rupp’s intimate familiarity with those waters, whichsupports the finding of recklessness in this case. c. Mr.

Irving raises a defence of due diligence under

section 78.6 of the Fisheries Act. The short answer is that a person who actsrecklessly does not exercise due diligence. [23] I conclude that Mr. Rupp was fishing for salmon with a barbed hook, and convict him of that offence. October 30, 2015 ________________________ T. Gouge, PCJ