R. v. Sameluk, 2012 ONCJ 101

COURT FILE No.: Thunder Bay 050449 DATE: 2010·06·22 Citation: R. v. Sameluk , 2012 ONCJ 101 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under

Section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — JARVIS SAMELUK Appellant Before Justice A. T. McKay Heard on September 8, 2011 Reasons for Ruling released on February 28, 2012. Scott B. D. Dunsmuir ......................................................................................... for the prosecution Mary Bird .................................................................................... for the defendant Jarvis Sameluk MCKAY J.: [ 1 ] This matter involves an appeal under

section 116 of the Provincial Offences Act . The Appellant , Mr. Sameluk, was, at the relevant time, the holder / designate of an Ontario Commercial fishing license. After trial, he was convicted of two counts of unlawfully failing to comply with a condition of the license by over fishing. He was sentenced to fines totalling $4,000.00, and prohibited from participating in commercial fishing activities for a period of 10 years.

He appeals both the convictions and the sentence imposed. [ 2 ] In earlier written decisions, this court has dealt with issues regarding representation of the parties by counsel on the appeal, and an application for a stay or proceedings. This decision deals with the remaining issues on the appeal. [ 3 ] Much of the evidence at the lengthy trial was lead by statement of agreed facts. The appellant has raised a number of issues on the appeal. APPELLANT’S INVOLVEMENT IN THE FISHING OPPERATION [ 4 ] The Appellant has raised an issue regarding his involvement in the fishing operations at the time of the offence.

To summarize very briefly, the argument is that essentially the appellant’s son was operating the business at the relevant timeframe. His son pled guilty to the offences of over fishing. The appellant had no knowledge or control over the operations and was not the operating mind of the business. The evidence was that the involvement of the appellant was the making of two telephone calls to a purchaser to come and pick up fish. [ 5 ] This issue was dealt with by the trial court.

The court dealt with sub-sections 78.4 and 78.6 of the Fisheries Act, which read as follows: “ 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 person in respect of any matter relating to any operations under a lease or license 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 was committed without the knowledge or consent of the accused. 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; (

b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.”

[6] The Appellant essentially argues that there was no evidence that he was involved in the over fishing which took place atthe relevant timeframe. The Appellant further argues that the evidence supports the inference that the actual fishing during that seasonwas being conducted by his son. [7] With respect to that issue, the trial court made the following statement: “the fact of the matter is that Jarvis Sameluk still had a license and he was the license holder up until February 4, 2005.

So, as ofDecember 5, 2004, he was in fact, regardless of operating mind or whatever, he was the license holder. ...the court doesn’t believe thatit’s necessary for him to be the operating mind. The MNR again, is under obligation to the province of Ontario to charge anyone who isa license holder, regardless how at arm’s length they are to a business. ...the point is that if Mr. Jarvis Sameluk was the license holder;he is in fact the license holder and therefore, under section 78(4) of the Fisheries Act, he’s chargeable.” The Appellant argues that the trial court misstated the law. [8]

Section 78.4 of the Fisheries Act creates a rebuttable presumption. The words, “unless the accused establishes that theoffence was committed without the knowledge or consent of the accused” requires an accused to establish that he did not haveknowledge of the offence or consent to the offence in order to escape liability. The offence is a strict liability offence, and accordinglythe burden of proof is on a balance of probabilities. There was no issue at trial that the Appellant was the license holder and that the overfishing took place.

The trial court reached the correct conclusion that it did not need to find that the Appellant was the operating mind ofthe business in order to ground a conviction. The evidence was sufficient to create the basis for the presumption under

section 78.4 toapply. That left the Appellant in the position where in order to escape a conviction, he needed to establish, on a balance of probabilities,that the offence was committed without his knowledge or consent. The Appellant in fact called extremely limited evidence to attempt torebut the presumption in

section 78.4. There was evidence called in the form of correspondence between the crown and defence counselrelating to a previous prosecution. That evidence could not rebut the presumption which was in place based on the evidence. There wasno additional evidence called by the Appellant which could have rebutted the presumption. Accordingly, it was open to the trial court toenter convictions based upon the evidence which was led and the provisions of

section 78.4 of the Fisheries Act. DID THE TRIAL COURT MAKE AN ERROR REGARDINGA POSSIBLE BREACH OF

SECTION 7 OF THE CHARTEROF RIGHTS OR AN ABUSE OF PROCESS ARGUMENT [9] The Appellant alleges that the trial court did not consider whether or not there was a breach of

section 7 of the Charterof Rights or an abuse of process. The Appellant then goes on to argue that the trial court dealt with each allegation of abuse of processon a piece meal basis rather than considering the conduct as a whole. The Appellant alleges that constituted an error in law in the trialcourt’s finding that there was no breach under

section 7 and no abuse of process. [10] The test for appellate intervention is whether the reasons provided adequately perform the function for which they arerequired, specifically allowing the appeal court to review the correctness of the trial decision. The trial court delivered oral reasonswhich were 65 pages in length. The trial courts findings of fact are entitled to deference, as long as there is a basis for those findings inthe evidence. The Supreme Court of Canada has clearly stated that cases where an abuse of process can be established will be extremelyrare. In R. v.

Power (SCC), [1994] 1 S.C.R. 601, the court stated the following: “To conclude that the situation is tainted to such a degree that it amounts to one of the “clearest of cases”, as the abuse of process hasbeen characterized in the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point thatthey are contrary to the interests of justice.” [11] The trial court considered the allegation of a breach of

section 7 of the Charter. In doing so, the court turned its mind tothe evidence, and found that there was not a charter breach. The trial courts reasons adequately address that issue. There was a basis inthe evidence for the court to reject the argument that there was a charter breach, and accordingly the appeal fails on that ground. [12] Similarly, the trial court decision spent significant time addressing the evidence and issues relevant to the abuse ofprocess argument. The trial court made certain findings based on its observations and assessment of the evidence.

Findings of fact weremade, including findings regarding the intentions of Conservation Officer Tippin. One might argue with some of the findings made bythe trial court. However, there was a basis in the evidence for those findings and the trial court was entitled to make those findings. Thefindings are entitled to deference on appeal. [13] When one examines the reasons of the trial court as a whole, the court considered the issues and the evidence anddetermined that this case did not meet the high threshold for an abuse of process.

The trial court was entitled to make that finding, andthis ground of the appeal must fail. DID THE TRIAL COURT CONDUCT THE TRIAL FAIRLYAND IMPARTIALLY [14] Much of the Appellant’s argument in this area suggests that the trial court cast “aspersions” against the accused, makinggratuitous and disparaging comments without basis regarding the evidence of the Appellant. The Appellant further argues that the court

made “inappropriate snide comments” both related to the evidence of the Appellant, and to conduct of the Appellant’s counsel. During a trial, comments or questions from the bench always have the potential to be interpreted as criticism by a litigant. The law provides that any apprehension of bias must be a reasonable one. The test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”. The threshold for finding a real or perceived bias is high.

The reason for that is clear; it essentially calls into question an element of judicial integrity. The onus is on the party alleging the existence of bias to demonstrate it. [ 15 ] Many of the comments made by the trial court which the Appellant objects to can, on a review of the transcript as a whole, be seen as negative findings of credibility regarding the evidence of the Appellant. A review of the transcript of the trial does not support any finding regarding a reasonable apprehension of bias.

DID THE TRIAL COURT ERR IN ALLOWING CROWN COUNSEL TO BEHAVE INAPPROPRIATELY [ 16 ] The Appellant essentially argues that crown counsel acted so improperly at the trial that it prejudiced the right to a fair trial. This argument can be dealt with briefly. There is no evidence to show that the crown behaved in improper conduct which could have affected the outcome of the trial. RESULT The appeal against the convictions is dismissed. APPEAL AS TO SENTENCE [ 17 ] The Appellant argues that the sentence imposed by the trial court was harsh and excessive in the circumstances.

The evidence established that the Appellant had twelve previous convictions under the Fisheries Act prior to this prosecution. The legislation provides that on first offence, an accused is liable to a fine not exceeding $100,000.00. Subsequent offences are punishable by fines not exceeding $100,000.00, or imprisonment or both. The fines imposed by the trial court are on the low end of the range. The trial court specifically commented that the fines were in the low end of the range because of Mr. Sameluk’s ability to pay.

The ten year prohibition order, given all of the circumstances, is neither excessive nor harsh. The Appellant has not provided any authority to suggest that the sentence imposed at trial is outside of an appropriate range. Accordingly, the appeal regarding sentence is also dismissed. Released: February 28, 2012 Signed: Justice A. T. McKay