R. v. Salvati Date:, 2017 BCPC 49

Citation: R. v. Salvati Date: 20170215 2017 BCPC 49 File No: E54394 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ASCANIO SALVATI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: R. Fowler Appearing on his own behalf: A. Salvati Place of Hearing: Colwood , B.C. Dates of Hearing: January 26, 2017, February 15, 2017 Date of Judgment: February 15, 2017

Introduction [1] THE COURT: On August the 10, 2016, Fisheries Officers Norton and Cormie were approaching Port Renfrew, BritishColumbia, in their Fisheries vehicle for the purposes of conducting a check of recreational fishers in that area.

They rounded the cornerand were in the process of turning onto Deering Road Bridge, heading towards Port Renfrew from the south, when they observed twomales standing on the west side or tidal water side of the bridge. [2] That resulted in an interaction between them and the two individuals, one being the accused, Ascanio Salvati (hereinafterreferred to as the "Defendant") and his son, Michael Salvati.

It also resulted in charges being laid and a ticket being issued to theDefendant, and a warning being issued to his son. [3] The alleged violation is a charge of fishing for salmon with prohibited gear; namely, a barbed hook, and that is pursuant to s. 49of the Sports Fishing Regulations, 1996 (SOR/96-137). That

section of the Regulations contains the following words: 49. No person shall fish for salmon by a method or with a type of gear or bait set out in column I of an item of the table to this sectionin any Subarea, lake or stream during the close time set out in column II of that item. [4] The table has the following heading: "Close Times for Salmon Angling by Method, Gear and Bait".

Item 4 on that tableprohibits using a barbed hook for salmon. [5] I understand that an amendment to the Sports Fishing Regulations was brought into force on April 24, 2015, which providedthat the close time for fishing for salmon in all tidal waters by means of a barbed hook was from April 1st to March 31st. In other words,at no time is it permissible to use a barbed hook to fish for salmon in any tidal waters: use a barbed hook to fish for salmon in any tidalwaters: "Pacific Region Gear Method Bait Variation Order No. 2015-38" (see also: R. v.

Dicesare, infra). [6] The fine for a voluntary (out of court fine) indicated on the ticket was $150. The Regulations provides for a fine of up to$100,000 for a first offence when Crown proceeds summarily, as is the situation in this case. [7] The Defendant has disputed the allegations contained within the ticket. Presumption of Innocence and Reasonable Doubt [8] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person.

Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. [9] The burden of proof rests upon the prosecution throughout the trial, and never shifts to the accused person. [10] Reasonable doubt is not an imaginary or a frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. [11] The Crown must prove more than probable guilt; however, reasonable doubt does not involve proof to an absolute certaintysince that would be an impossibly high standard. [12] The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. (See R. v.Lifchus, (S.C.C.), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144.) The W.(D.) Formulation [13] I must instruct myself that in the trial of criminal matters and in regulatory offences, it is not a question of which witnesses,evidence or version of the events, I believe but rather whether, on the totality of the evidence, Crown has proven each essential elementof each offence beyond a reasonable doubt. [14] Where there is evidence of an accused that raises a defence, as in this case, then I must further instruct myself and I must applyto this evidence the well-known process of analysis set out in R. v.

W.(D.), (S.C.C.), [1991] 1 S.C.R. 742, found atparagraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused [person] but [I am] left in reasonable doubt by it, [I] must acquit.

Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [15] It is also important that I instruct myself that the W. (D.) model is not intended to be a precise formulation to be used at all timesor to achieve a level of sanctity or immutable perfection.

Once again, I must instruct myself on the main point that the burden nevershifts from the Crown to prove every element of the offence beyond a reasonable doubt. [16] A lack of credibility on the part of the accused person does not equate to proof of his or her guilt beyond a reasonable doubt. (See R. v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) [17] In this case, I heard evidence that is conflicting on some important material matters. Therefore I must assess the credibility ofthe witnesses who provided this conflicting evidence. In doing so, I must weigh all the evidence and in so weighing the evidence, I may

reject or accept some or all of the witnesses' testimony, after having taken into account a multitude of factors which include, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency. [ 18 ] I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [ 19 ] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. ( See R. v.

Jackson , 2007 BCSC 636 ; see also R. v. Mann ,

(2010) A.J. No. 1094 .) The Evidence The Crown's Case Evidence of Fisheries Officer Cormie [ 20 ] Crown called the two Fisheries Officers, Norton and Cormie, to provide evidence in this matter. The evidence of Fisheries Officer Norton indicated that on the date in question, August 10, 2016, at approximately 11:00 a.m., he and his colleague, Fisheries Officer Cormie, were in a Fisheries vehicle approaching the Deering Road Bridge which bridges the San Juan River. As I understand it, in order to enter onto this long bridge, it requires a hard left hand 90 degree turn.

It was at that point, according to the evidence of Fisheries Officer Norton, that the two individuals were observed on the bridge. [ 21 ] The evidence that I have received indicates that this lengthy bridge has two distinct portions. One is the travel portion for vehicles. That travel portion has, on one side, a barrier which isolates the travel portion from the areas that I can refer to as the pedestrian portions; that is certainly the case on the west side or the tidal water side.

There is a pedestrian area which is separated by a barrier from the road area, or the travel portion area; on the outer side of the pedestrian area is another handrail which is for the protection of individuals who may be utilizing the pedestrian portion of the bridge. [ 22 ] The bridge, as I indicated, is quite long in its length, the evidence being that it is something in the range of between 300 and 400 metres long. [ 23 ] As previously noted when the Fisheries vehicle completed its turn, the two individuals were observed by the two Fisheries officers. [ 24 ] It was the evidence of Fisheries Officer Norton that the Deering Road Bridge is a popular area for recreational fishers.

It is possible from that location to cast from the bridge into the waters below in order to catch salmon. [ 25 ] This observation of the two individuals resulted in Fisheries Officer Norton, who was driving the Fisheries vehicle, to stop and allow Fisheries Officer Cormie to alight and to engage with these two individuals who remained on the bridge. As I noted earlier, one was the Defendant and the other was his son. There is no issue taken with respect to identity. [ 26 ] Fisheries Officer Norton had observed what he believed to be fishing rods in the area and possession of the two individuals.

Having dropped off Fisheries Officer Cormie, Fisheries Officer Norton continued to the north end of the bridge, where he parked the Fisheries vehicle and then walked back in order to provide what he described as “cover” for Fisheries Officer Cormie as she was completing the inspection of the fishing gear that had been observed by the Fisheries Officers. [ 27 ] It was Fisheries Officer Norton's presumption that the two individuals were engaged in fishing at the time that they were first observed on the bridge by the Fisheries Officers.

However, in cross-examination, Fisheries Officer Norton did concede that he did not actually observe either of the two individuals, and specifically the Defendant, casting with his rod. He did not observe the Defendant "aggressively fishing". [ 28 ] What Fisheries Officer Norton did observe was a line pointing towards the water. He also confirmed that he did not observe any retrieval of the lure and hook attached to the Defendant's line.

He did not observe any hard motion or pulling up of the fishing gear, including the hook and the lure, but came to the conclusion that fishing was taking place because of the proximity of fishing rods and, specifically, the angle of the Defendant’s fishing rod which he indicated was pointing upward. [ 29 ] He did also concede that he could not observe any fishing lines in the water below the bridge. He also conceded in cross- examination that his opportunity to observe the two individuals on the bridge, one being the Defendant, was only for a period of a few seconds.

To be more precise, he believed that that timeframe was something in the range of between some three or four seconds. [ 30 ] Upon his return to the meeting between Fisheries Officer Cormie, the Defendant and the Defendant's son, Fisheries Officer Norton was informed by Fisheries Officer Cormie that as a result of an inspection, she had located two barbed hooks, one on each of the fishing lines of the Defendant and his son. As a result of that, Fisheries Officer Norton clipped off the lure of the Defendant, which contained the barbed hook, and took that into his possession.

That was subsequently introduced, without any objection, as an exhibit at the trial of this matter. Evidence of Fisheries Officer Cormie [ 31 ] Fisheries Officer Cormie confirmed that when she and Fisheries Officer Norton made the turn onto the Deering Road Bridge, that she was able to observe the two individuals who she described as being “two individuals with fishing rods”. When she was asked in examination-in-chief, she said that she "believed" that they were holding the fishing rods, but she expressed some uncertainty in that regard. [ 32 ] She did question the two individuals.

In direct response to her question about what they were doing, she was told by the

Defendant that they were "salmon fishing".

It was at that point she observed the gear that was in the possession of the two individuals and noted that there were barbed hooks on each of the two fishing rods and specifically on the lures connected to each. [ 33 ] She was unable to specifically recall what the two individuals were doing at the time that they were first observed and during the period of observation made as the Fisheries vehicle proceeded across the Deering Road Bridge. [ 34 ] Fisheries Officer Cormie was also unable to recall any actions or activity involving the fishing rods or the hooks and lures, other than to observe that the fishing hooks were prohibited for salmon fishing. [ 35 ] In her examination-in-chief, she indicated that the hooks on each of the two rods were single-pointed hooks with a barb located on them.

She also testified, that based on her experience, it is a common practice for fishers to flatten the hook’s barb to the main shaft of the hook or to pinch off the barb by the use of pliers, thus to ensure that the prohibition against barbed hooks is complied with and to avoid catching any salmon on the barbed hook. [ 36 ] Her observation was that she could not specifically tell if there had been any attempt to modify the two hooks, but she did indicate that the hooks appeared as if they had been previously used.

However she did indicate that the barb on the Defendant's hook had not been flattened out. [ 37 ] In addition, during in her evidence-in-chief, she indicated that she did not recall what the two individuals were doing as the Fisheries Officers approached; she did confirm in cross-examination that she had no recollection of seeing either of the two individuals casting their rods into the water. She had a somewhat limited memory of the discussions that took place with the Defendant.

She did indicate that both the Defendant and his son were cooperative, both of them were properly licenced, and she also indicated that she had a recollection that the Defendant did tell her that he had other hooks in his possession. However, she had no recollection of the Defendant telling her that he had crimped all of his hooks, nor did she have any recollection of recalling the exact location of the two rods. [ 38 ] In conclusion, in her cross-examination, she indicated that she had not witnessed the Defendant “modifying” or utilizing his fish line or his lure.

The Defence's Case Evidence of Ascanio Salvati [ 39 ] The Defendant, Ascanio Salvati, was the sole witness on behalf of the defence. Mr. Salvati is 67 years of age. He has been a fisher since age 14; thus, he has 53 years of experience. He has held a fishing licence since age 16. He testified that he is familiar with the Fishing Regulation s, and in particular, he is familiar with the requirement not to be salmon fishing with a barbed hook. [ 40 ] He said that on the day in question, he and his son had arrived on the bridge shortly before their encounter with the Fisheries Officers.

He indicated that, as is his common practice, he parked his vehicle, in this case on the north end of the bridge, and then walked back onto the bridge. He and his son each had a fishing rod. [ 41 ] The Defendant had in his possession wrapped-up lures with hooks attached to them. He and his son commenced fishing from the bridge. They were each using 80 gram lures, which had hooks attached to each.

He indicated that the hooks were similar to those that were confiscated by the Fisheries Officers, but said that each of those hooks were pinched hooks, in other words, barbless hooks. [ 42 ] After casting five or six times each, the Defendant concluded that he had too much weight comprising each of those lures. Accordingly he switched to what I will refer to as the second lure, or Lure Number 2. Lure Number 2 for each rod was a 60-gram lure.

Each Lure Number 2 had a different hook attached to it than had been used with and connected to the first lures used , which I will refer to as Lure Number 1. [ 43 ] He indicated that the change of lures from Lure Number 1 to Lure Number 2 occurred while he and his son were on the bridge. He said that it is a relatively quick procedure to change lures.

He said from the point of view of reeling in his line from the water to changing it, that is removing the old lure and hook, and replacing it with a new lure and hook, takes anywhere from 45 seconds to a minute on the outside. [ 44 ] The Defendant testified that he had made the change to Lure Number 2 for each of his rod and for that of his son. He indicated that, at the time that the Fisheries Officers had approached, that neither he nor his son had cast their rods using Lure Number 2 and that, at the time that the Fisheries Officers approached, his son may have been holding his rod in his hand.

However, he testified that the rod for the Defendant’s use was laying across the guardrails between the road portion of the bridge and the outer guardrail of the pedestrian area. [ 45 ] The indication from the Defendant is that his rod was approximately seven feet in length. He said that there was approximately one-and-a half to two feet of 15-pound test line extending from the end of his rod and that this one-and-a-half to two feet of test had connected to it the 60-gram lure and hook.

He testified that his lure was therefore dipping down approximately two feet out of the visibility of anyone that may have been observing from a distance. However the lure was far from the water which was some 70 feet below measured from the top of the handrail to the river's surface. [ 46 ] He indicated that, at the time he was standing on the bridge with his son, they were making observations for locations where there appeared to be some fish action in the river.

He said that none was observable and hence he had not taken any steps in order to start casting his rod and line. [ 47 ] He further said his common practice is that, before he casts, he always checks his hooks and completes a pinching of any barbs in order to be in compliance with the Fishing Regulations. In this case, he was of the belief that he had already pinched or crimped the hooks on Lure Number 2, but during his examination-in-chief, he did concede that there was on Exhibit 2, being the lure and barb confiscated from him, what appeared to be a remaining barb.

It is that type of barb, which I understood from his evidence, would be the

subject of his final inspection, and further that he always carried the pliers in order to complete any additional crimping that may berequired in order to be in compliance with the Regulations prohibiting the use of barbed hooks while salmon fishing. [48] The Defendant does concede that he did tell Fisheries Officer Cormie that he and his son were salmon fishing.

However hecontends that, at the time in question, or at the times he was observed, that they were not engaged in fishing and in fact were onlyengaged in preparing to observe for what might appear to be a suitable area of the river to complete their cast. [49] He was quite firm in his evidence that, as part of his common practice, he would have checked for the barbs on his hooks beforeengaging in further casting of the lines into the water. The Applicable Law [50] The offence for which the Defendant has been charged is a strict liability offence under the Fisheries Act.

As noted by theSupreme Court of Canada in R. v. Sault Ste. Marie (City), (SCC), [1978] 2 SCR 1299, that an accused has available thedefence of due diligence as described as follows: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports 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. [51]

Section 78 of the Fisheries Act codifies the common law defence of due diligence.

Section 78.6 provides as follows: No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence 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. [52] Another important statutory provision is the general definition of “fishing”.

Section 2 of the Fisheries Act provides as follows: "fishing means fishing for, catching or attempting to catch, fish by any method". [53] Therefore, in order to discharge the Crown's burden of proof, it must establish that the Defendant in this case was engaged infishing; and secondly, it must establish that the Defendant was fishing for salmon using a prohibited barbed hook. [54] If Crown establishes a prima facie case, then it is up to the Defendant to adduce sufficient evidence to show that the Defendantcan avail himself of the due diligence defence, as identified under

section 78.6 of the Fisheries Act. Based upon the evidence in this casea due diligence is not raised and would not be available.

Crown's Position [55] Crown has submitted that the required elements of the offence have been proven and satisfied by the evidence of the twoFisheries Officers and further, by the statement made by the Defendant to the Fisheries Officers to the effect that he and his son wereengaged in salmon fishing. [56] Specifically Crown says that the observation made by the Fisheries Officers of the location of the fishing rods on the tidal waterside of the bridge establishes that fishing was the activity that was being engaged in by the Defendant.

The observation of the barbs onthe hooks establishes the violation of the Fisheries Regulations. [57] The Crown indicates that there is no regulation as to the size of any hook barb but rather that any barb is, in fact, proscribed. [58] The suggestion made by Crown is that the evidence provided by the Defendant to the effect that no fishing was taking place isnot consistent with the initial observations made by the Fisheries Officers. It is that evidence of the Fisheries Offices that I am beingasked to accept over the evidence of the Defendant.

Defence's Position [59] The Defendant's position in this case is that at the time in question, that there was no fishing taking place and that prior to anyfurther fishing taking place, following the change from Lure 1 to Lure 2, the usual customary practice of the Defendant, would haveresulted in a further study and inspection of his hooks, and any further adjustment that was necessary to those hooks would have beenmade in order to prevent any violation of the Fisheries Regulations. [60] Hence the Defendant says that the charge against him should be dismissed on the basis that Crown has failed to prove anessential element of the offence, namely that he was fishing.

CASE AUTHORITIES [61] A limited number of case authorities were referenced by Crown and defence. [62] The Crown has referred the court to the recent British Columbia Court of Appeal decision in R. v. McKinnell Fishing Ltd.,[2016] B.C.J. No. 2485, 2016 BCCA 472. [63] Defence has referred the court to the decision in R. v. Doerksen, 2002 BCPC 36, a decision of the Honourable Judge Dollis ofthis court.

[64] I have had the opportunity of also reading a number of other cases which are of some assistance insofar as they provide somegeneral guidance in this type of case. Those include the following:

(1) R. v. Dicesare, 2016 BCPC 409 , the decision of theHonourable Judge Flewelling of this court;

(2) R. v. Rupp, 2015 BCPC 301 , the decision of the Honourable Judge Gouge of thiscourt;

(3) R. v. Boyd, [2010] N.S.J. No. 585, 2010 NSSC 417, a decision of the Nova Scotia Supreme Court; and

(4) R. v. Skinner, (NL CA), [1997] N.J. No. 20, 147 Nfld. & P.E.I.R. 350, a decision of Newfoundland Supreme Court - Court of Appeal. [65] Although I may not make specific reference to some of these cases, I have reviewed these authorities in their entirety, and havetaken the guiding principles presented by each of them into account in making a determination of my decision.

ANALYSIS [66] I am satisfied that the Crown has satisfactorily established that the fishing hooks in question that were on the lines of both theDefendant and his son were fishing hooks that contained a barb, and thus contrary to the Regulations, if in fact it can be established fromthe evidence that the Defendant was, at the time in question, fishing for salmon with that barbed hook. [67] Therefore this case turns on whether or not Crown has established that at the time that the observations were made by theFisheries Officers, the Defendant was engaged in the activity of salmon fishing. [68] By the Defendant's own admission, he and his son had been engaged in salmon fishing prior to the arrival of and theobservations made by the Fisheries Officers.

But I do accept the evidence of the Defendant that such earlier salmon fishing took placewith the use of what I have described above as Lure Number 1 affixed on each of the two fishing rods in the possession of the Defendantand his son and that the hooks were barbless on both those lures. [69] What is less clear on the evidence of the Fisheries Officers is whether or not there was, in fact, any activity taking place bymeans of casting, retrieving gear, or other usual indices of fishing at the time that the observations were made by the Fisheries Officersof the Defendant and his son. [70] In that regard, I have somewhat limited reliable evidence from the Fisheries Officers, especially when I note that theopportunity that each of the Fisheries Officers had to make their observations was initially from a significant distance of some 150 to 200metres away.

Furthermore as indicated in the evidence of Fisheries Officer Norton, and as confirmed by the general evidence ofFisheries Officer Cormie, that period of observation lasted only a few seconds. [71] It is clear that the mere presence of the Defendant and his son on the tidal water side of the bridge with fishing rods in hand orclose at hand led the Fisheries Officers to conclude that actual fishing activity was taking place and that the rods were in active use atthat time. [72] However, the Fisheries Officers were candid with the court when they did confirm that they did not actually observe any typeof actual fishing activity taking place with the use of the rods.

Rather what they observed was the tidal water direction and angle of eachof the rods which they indicated led them to presume that the rods were being utilized at that time for fishing. [73] Against that particular evidence from the observations of the Fisheries Officers, I have the evidence of the Defendant to theeffect that the Lure Number 2, on both his rod as well as on the rod of his son, had not been utilized for fishing at any time prior to theobservations being made by the Fisheries Officers.

The Defendant was candid in his evidence that the barbed hook on his particularLure Number 2 would not be in compliance with the Fishing Regulations, of which he had full knowledge, as an experienced fisher. [74] The Defendant described his usual practice for the modification of barbed hooks and described that he had in his possessionpliers for the purpose of completing any adjustment on the barbs to the hooks. I accept that evidence.

Furthermore I have his evidencewhich I also accept as being credible and trustworthy that before utilizing the fishing rods and the connected lures and hooks for thepurposes of fishing, that he would have made a final inspection and any required further adjustments to the hook before starting to cast. [75] I also have credible evidence on the part of the Defendant that he, at the time of being observed by the Fisheries Officers, wasmerely engaged in making observations for possible locations in which to cast from the bridge to the water some 70 feet below.

I alsoaccept his evidence that the fishing lines were well out of the water, and only about a foot-and-a-half to two feet of line was extended. Hence there was a considerable distance down to the San Juan River from the level at which the rods were located at the time ofobservation by the Fisheries Officers. [76] I must therefore decide whether or not, at the time that the Defendant was observed, he was fishing within the meaning of s. 2of the Fisheries Act. [77] In that regard, I note the definition of fishing that was established by the Supreme Court of Canada in the case of The Ship"Frederick Gerring Jr." v.

HMTQ (1897), 1897 CanLII 84 (SCC), 27 S.C.R. 271. The test in that case applies the statutory definition offishing that is found in s. 2 of the present version of the Fisheries Act. [78] At paragraph 11 of R. v. McKinnell Fishing Ltd., our Court of Appeal states as follows: [11] … The test in Gerring is the following (at 280-281): The act of fishing is a pursuit consisting, not of a single but of many acts according to the nature of the fishing. It is not theisolated act alone either of surrounding the fish by the net, or by taking them out of the water and obtaining manual custody of them.

Itis a continuous process beginning from the time when the preliminary preparations are being made for the taking of the fish andextending down to the moment when they are finally reduced to actual and certain possession… [12] On this approach, fishing includes all of the steps necessary to bring fish into actual possession. It follows that, even though nomore crab could enter or leave the trap after the trap was raised off the ocean floor, the processes of retrieving the traps and sorting the

crab are integral parts of the operation of fishing. Fishing continues even though no more crab can be caught and none of the capturedcrabs can escape. … [17] Gerring is well-established as the leading case on the meaning of "fishing" and the definition of fishing quoted above has beenwidely applied to the statutory definition in the Fisheries Act: see e.g., R. v. White, 2006 NLCA 71; R. v. Denton, (NSCA), [1991] N.S.J. No. 148, 105 N.S.R. (2d) 357 (C.A.); R. v. Saunders, (NS CA), [1989] N.S.J. No. 407 (C.A.), 94N.S.R. (2d) 224; R. v. Dorgan, 2009 PECA 23; Canada (Attorney General) v.

Chlopek Fish Co., (BC CA), [1912]B.C.J. No. 14 (C.A.), 1 D.L.R. 96. [79] The test in Gerring is often applied to situations involving activities being undertaken which may offend provisions of theFisheries Act or its Regulations and in which it is argued that the activity taking place was not part of fishing, as defined under s. 2 of theFisheries Act. [80] In many of the cases, such as in R. v. McKinnell Fishing Ltd., the court is grappling with the question as to whether fishing hadcommenced, was continuing or had ceased.

In the McKinnell Fishing Ltd. case defence submitted that the crabs had been caught in crabtraps in an unrestricted area and thus had at that point been fished. Thereafter the traps were raised and the crabs were landed while thevessel was in a restricted area but that part of the activity did not meet the test of fishing for the purposes of the Fisheries Act. [81] In the McKinnell Fishing Ltd. decision, the defence argument was that once the traps had been lifted from the ocean floor in theunrestricted area, the crabs were caught and the fishing for crabs had been completed.

The landing of the crabs and the taking ofpossession of them in the restricted area occurred after the fishing had been completed and hence fishing was not taking place in therestricted area. The court rejected that on the basis of the test in Gerring. [82] In this case, the defendant was certainly contemplating the commencement of a fishing activity. That fishing activity, in myview, would have commenced had the Defendant been engaged in either casting his rod, landing his lure and hook onto the water, andcommencing any attendant type of activity beyond making observations.

However, in this case the evidence is clear that he was, at thetime that he was observed by the Fisheries Officers, simply looking for the best possible area in which to cast. He did not have hisfishing rod in his hand. He had the fishing rod in a stationary position with the line only extended a few feet from the end of the rod. Hewas not engaged in any sufficient active preliminary activity which may fall and be caught within the definition of fishing as laid out inthe Gerring test that has been adopted and followed by our Court of Appeal in R. v.

McKinnell Fishing Ltd. [83] The Defendant may well have committed the offence had he taken any further steps beyond making his simple observationsand had in any way started to commence the lowering of his lure and hooks into the water, or had taken more definitive steps in order tocommence his fishing in the San Juan River with the barbed hooks. He did not. [84] Therefore I accept the evidence of the Defendant in this case that he was simply making observations and had not commencedany active steps of fishing with a barbed hook, that were sufficient to amount to fishing within its meaning under the Fisheries Act.

Ihave reached that conclusion notwithstanding the general descriptive words that the Defendant used in response to the question posed tohim by Fisheries Officer Cormie, which accurately described what the Defendant and his son had been doing with Lure Number 1. [85] I further observe that formulating some future intention of conducting fishing is not what is provided for under this particularoffence. Although it is not borne out by the evidence in this case, there may very well be cases where an individual could be viewed ashaving started to fish by their preparatory steps.

For example and without deciding the point, had the Defendant been on the river's edgeand actually entered into the waters with the fishing rod in hand, complete with a lure and hook and was about to cast that might havebeen sufficient for the offence to have been established by Crown. However, that is certainly not the evidence that I have before me. CONCLUSION [86] Accordingly, on the basis of all of the evidence before me, that I do accept, and on the basis of what I understand to be the lawof this province as expressed in R. v.

McKinnell Fishing Ltd. and relying on the other authorities to which I have made reference, I acquitMr. Salvati of the charges against him. [87] That concludes my reasons with respect to this matter. The Honourable Judge J. P. MacCarthy Provincial Court of British Columbia