R. v. Ralph, 2013 NLCA 1

Date: 20130104 Docket: 11/20 & 11/23 Citation: R. v. Ralph , 2013 NLCA 1 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT/RESPONDENT BY CROSS-APPEAL AND : SHAWN RALPH RESPONDENT/APPELLANT BY CROSS-APPEAL Coram: Welsh, Rowe and Barry JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador (General) 200801T3510 Appeal Heard: September 12, 2012 Judgment Rendered: January 4, 2013 Reasons for Judgment by Rowe J.A. (dissenting in part) Reasons for Judgment by Welsh J.A. Concurred in by Barry J.A.

Counsel for the Appellant/Respondent by cross-appeal: Paul B. Adams Counsel for Respondent/Appellant by cross-appeal: David W. Bussey

REASONS FOR JUDGMENT BY ROWE J.A. (DISSENTING IN PART): INTRODUCTION [ 1 ] Shawn Ralph was the skipper of a “sixty-five footer”, the Melina & Keith II , which rolled over and sank in tragic circumstances. This case does not relate to the sinking of the vessel. Rather, it relates to whether the vessel (before its fatal mishap) had been operated in accordance with certain requirements of the Canada Shipping Act , RSC 1985, c. S-9 and regulations. FACTS [ 2 ] Shawn Ralph, as owner and skipper of the Melina & Keith II , was charged with eight regulatory offences under the Canada Shipping Act and regulations. He was convicted in Provincial Court for five of the offences. These were: (

i) operating the vessel without certified crew to ensure a proper deck watch; (ii) failure to maintain a proper deck watch; (iii) failure to keep a proper look-out; (iv) failure to ensure that crew understood lifesaving and fire fighting equipment; and (

v) operating a “steamship” without a valid certificate to do so. [ 3 ] On appeal to a judge of the Trial Division, sitting as a

summary conviction appeal judge, the convictions for (

i) to (iv) above were upheld, but that for (

v) was set aside. The Crown appealed to have the conviction for (

v) restored; Mr. Ralph cross-appealed his convictions for (

i) to (iv). [ 4 ] Pursuant to

section 839 of the Criminal Code , leave to appeal the decision of the Trial Division judge is needed. The test for leave was set out in Newfoundland Recycling Limited v. Her Majesty the Queen (Canada) , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153, and is summarized at paragraph 9: (

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”. The appeal and cross-appeal in this case raise questions of law and satisfy the threshold requirement for a “reasonable possibility of success”. That being so, I would grant leave. ISSUES [ 5 ] Should the four convictions be set aside? Should the reversal of conviction for the “steamship” offence be set aside and the conviction for that offence restored? ANALYSIS (

i) Certified Crew for a Proper Deck Watch [ 6 ] The Provincial Court judge said in this oral decision: In respect of [this] count … [Mr.

Ralph] operated the vessel without a sufficient number of mates to ensure that the deck watch complied with Sections 38 to 41 of the Crewing Regulations [pursuant to the Canada Shipping Act ] beyond any reasonable doubt that charge has been made out and I say this for the following reasons, he and everybody in this industry knows that in respect of a vessel like his in order to ensure at all times there’s sufficient number of qualified people onboard to be able to run a watch and the regulations do make it clear that if he’s going to have somebody acting as mate that has to be a [Fishing Master IV]. [ 7 ] The Trial Division judge (on appeal) wrote: [13] On the issue relating to Count # 2, having the proper number of mates, the trial judge recognized that while he found on Count # 1 that the Captain of the fishing vessel Melina & Keith II could be on call at all times even when he was sleeping and that it may not always be necessary for the officer on a particular watch to actually be on deck he was not prepared to carry this finding over to Count # 2 to satisfy the requirement of having the proper number of mates necessary to ensure that the deck watch complied with Sections 38 to 41 of the Crewing Regulations . [14] The trial judge stated within his reasons what I take as his consideration of the ordinary practice of seamen that Captain Ralph and everybody in the industry knew that there had to be a sufficient number of qualified people on board to be able to run a watch.

He further found that the regulations make it clear that if Captain Ralph had somebody acting as a mate then that person had to be a Fishing Master, Class IV (FM IV). In his own testimony Captain Ralph testified that he knew he needed a mate with an FM IV classification. [15] The trial judge relied on the testimony from Captain Ralph and from colleagues of Captain Ralph as well as from the testimony

of those enforcement officials of Transport Canada that a qualified mate had to be onboard. Thus he correctly addressed his mind as to what is considered to be the ordinary practice of seamen and concluded that Captain Ralph had not satisfied that standard. [16] It is critical, since the offences for which Captain Ralph is charged come under the Crewing Regulations of the Canada Shipping Act , that these regulations as they existed at the time be closely examined. [ 8 ] The Trial Division judge was correct when he wrote that the Crewing Regulations need to be closely examined. Whatever Mr.

Ralph thought was required, whatever Transport Canada officials thought was required, it is the content of the regulations that constitutes the requirement. [ 9 ] It is clear from the relevant Crewing Regulations (

section 41 ) that Mr. Ralph was required to have someone to act as a member of the deck watch who “is the holder of a Certificate appropriate for the class of ship in the area in which the ship operates”. [1] This requirement is cross-referenced in section 29(1) (

c) of the Crewing Regulations. [2] Subsection 29(3) refers to Table 2 as setting out the requirement for various fishing vessels. [3] Table 2, Column 4 provides that for “a vessel not exceeding 100 tons” engaged in a “Fishing Voyage, Class III” (as was the case here), the mate should hold a certificate of (at least) “fishing master, fourth class”. [ 10 ] The reply on behalf of Mr. Ralph is set out in his Factum: [37] The Respondent, therefore, submits that the Appeal Judge erred in interpreting Sections 39 - 41 of the Crewing Regulations .

The Respondent complied with the requirements set out in these provisions insofar as he, as Master of the ship, held the certification required for taking charge of deck watch, met the requirements for the composition of mates as he was included in the count, and further, remained in charge of the watch during the Vessel’s entire voyage by being on call or physically present on the bridge or deck of the Vessel. This was demonstrated throughout the trial as the evidence was that the Respondent was either at the Helm of the Vessel or seconds away during the entire voyage. [ 11 ] Mr.

Ralph argues that he was both master and mate, thus fulfilling the requirement under the Crewing Regulations . This is a patent absurdity. You are master or mate, not both. You are on watch or you are asleep, not both. It is the mate who stands in place of the master when the latter is not on watch. This is important to deal with imminent dangers when they arise, e.g. a rogue wave. It is also important so as to recognize the significance of developments that signal approaching danger, e.g. a shift in the winds or change in sea state that heralds the onset of heavy weather.

Most of all, it is important in the event the master is unable to perform his duties, e.g. due to injury, so that there is someone with the necessary skills to get the vessel safely back to port. The rationale for requiring both a master and a mate is ineluctable. As well, paragraph 29(1) (

a) refers to “a master” and paragraph 29(1)(

c) refers to “a sufficient number of mates”, clearly indicating the master and the mate are not one and the same. I would dismiss the appeal from conviction for this charge. [ 12 ] As a final matter, I would refer to the reasons of my sister Welsh on this issue. She and I differ as to our line of analysis, each of which speaks for itself. All I will say is that if the vessel was rated at more than 100 tons, then it did not come within line 4 of Table 2 to

section 29 of the Crewing Regulations (as I have said above); rather, it would have come within line 3 of that table (which does not have the 100 ton cut off), thus requiring the mate to be a “fishing master, third class” and not “fourth class”. In either case, Mr.

Ralph would still be guilty of the offence as charged. (ii) Failure to Maintain a Proper Deck Watch [ 13 ] The Provincial Court judge said in his oral decision: At the time just before the sinking when the turbot net was being pulled on that day the captain has told me that, you know, he was running gear that in other words that he had to keep, I guess, his propellers moving in some fashion and that kind of thing to prevent the net from twisting and he like and while there was reference by defence in submissions to me to the effect that in effect he was anchored I find that I can’t accept that that’s anchored if you’re doing that.

It’s a motion with the ship that’s being done or at least the ship is operating, it’s not truly anchored. . . . In my view, you know, there needed to be a proper watch, at least a deck watch at that time. Now, he had left the bridge and, you know, he went and made some sandwiches in the galley and certainly at that time he’s not actually looking out and I didn’t hear any evidence that he, in fact, had anybody else set up to have a good lookout around the ship. I rejected defence testimony and suggestion, I don’t reject the testimony about what you can see when you’re down on the fishing deck, I accept that.

Like, if you stick your head out through the hole that the net comes in through that you can essentially see 180 [degrees], I accept the fact that you can see a fair bit to the rear of the ship by then looking out the other doors at the back if you’re open but you don’t have 360 [degrees] and you don’t have anywhere near a 360 [degree] view when you do that and to my mind it’s important at sea, particularly when the ship is under power, that there be a constant 360 [degree] view able to be seen.

How can one rule out, you know, a rogue whale or a rogue wave, you know, radar shows a lot of things but it doesn’t show everything and some of the things that are required for purposes of safety do require that there be a good physical lookout as well. The whole industry, shipping, understands this and there’s very good reasons for it. So, count number four in my mind is made out beyond a reasonable doubt and I don’t see any real evidence of due diligence here.

You know, if he wanted to come down somebody else should have been at least keeping a good lookout and that wasn’t done. [ 14 ] The Trial Division judge (on appeal) wrote: [43]

Section 38 of the Crewing Regulations … incorporates the STCW [Seafarer’s Training, Certification and Watchkeeping] Code where at 3.1(14) is stated that the lookout is to give full attention to his lookout duties and to be assigned no other duties which would interfere with that. In the present case the evidence is that all hands on board with the possible exception of Igor [a crew member], who had been injured, were engaged in hauling the nets and retrieving the fish. No one has been specifically assigned to keep watch. [44]

Section 3.1(17) makes it clear that at no time is the bridge to be left unattended. Once again, the evidence before the trial judge was that there was no one on the bridge and the fact that Captain Ralph was on the fish deck helping to retrieve the fish did not

constitute his presence on the bridge. [45]

Section 3.1(23) also makes it clear that the officer in charge of the navigational watch, which could only have been Captain Ralph at that time, was required to keep that watch on the bridge and in no circumstances was he to leave the bridge until properly relieved. The evidence before the trial judge was that Captain Ralph was engaged in other duties outside of the wheelhouse or bridge of the vessel. This was clearly in conflict with

Section 3.1(26) of the STCW Code where the officer in charge of the navigational watch must not be assigned or undertake any other duties that would interfere with the safe navigation of the ship. [46] The trial judge did not accept that Captain Ralph being on the fishing deck and engaged in the retrieval of the fish was properly on duty on the bridge.

His findings were based on the evidence before him which he fully considered and he was not in error in deciding as he did in relation to Count # 4. [47] As to the defence of due diligence the trial judge was not convinced that Captain Ralph had satisfied him that there was any real evidence to support this defence. As I stated earlier this was for the trial judge to determine on a balance of probabilities as a fact and the trial judge’s finding that there was no evidence to support that test will not be interfered with.

I agree with the trial judge that the evidence did not disclose that Captain Ralph did everything reasonable to avoid having contravened the regulations. Surely he ought to have recognized that his place was to be on the bridge as demanded by the regulations. On Count # 4 the trial judge’s findings were not in error and will not therefore be interfered with. [ 15 ] In his Factum (at paragraph 43), Mr. Ralph quotes from the foregoing passage and responds as follows: [44] However, the above statement disregards the technology available on the Vessel which Mr.

Oakley [a marine electronics technician] had testified in regards to. The Appeal Judge erred in finding that the Respondent should have had someone else keeping a good lookout in order to satisfy due diligence. The Respondent had already equipped his Vessel more thoroughly and extensively than most, if not all, other comparable vessels. He had several stations suitable for carrying out a watch or look-out with the most technologically advanced equipment, and he had crew members capable of using the equipment for the purpose of carrying out a proper watch and look-out.

It is submitted that the Respondent took a number of measures to ensure safety and the proper running of his Vessel both through equipment and crew members and this was adequate to constitute due diligence. [ 16 ] Mr. Ralph’s position amounts to this: by having certain instruments on the fishing deck, he could carry out a proper watch, such that no one was needed in the wheelhouse (bridge) to do this. That flies in the face of the requirements set out in subsections 3-1(14) [4] , (17) [5] , (23) [6] and (26) [7] of the STCW Code; a proper watch must be maintained in the wheelhouse (bridge), which was not done.

The clear language of the relevant regulatory provisions does not support an

interpretation allowing for substitution of a person on the bridge (in the wheelhouse) by the monitoring of instruments at a work station elsewhere on the vessel.

The appeal from conviction on this charge is dismissed. (iii) Failure to Keep a Proper Lookout [ 17 ] The Trial Division judge (on appeal) wrote: [48] In relation to Count # 5, failing to maintain a proper lookout contrary to Rule 5 of the Collision Regulations: Rule 5 states that: Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision. [49] In his reasons for deciding as he did the trial judge incorporated his findings of Count # 4 and stated at page 910 of the trial transcript that: Similarly for count number five, you know I just don’t see how you could say you’re keeping a proper lookout when, you know, you’re in the galley making sandwiches with no evidence of anybody else filling in doing that and I find no evidence of due diligence there so count five is made out beyond a reasonable doubt. [50] On this count the trial judge adopted the same reasoning as applied by him to count number four and found that Captain Ralph , in effect, could not be at all times maintaining a proper lookout while he was in the galley preparing sandwiches for his crew.

This was a finding of fact and was clearly open to the trial judge to decide as he did based on all of the evidence before him. The trial judge found that Captain Ralph was not on the bridge, and he had not assigned any other person specifically to maintain lookout duties. Those crewmembers working at the fishing operation could not be assumed to be on lookout and be in compliance with Rule 5 of the Collision Regulations. [ 18 ] The key element of Mr. Ralph’s reply is as follows: [47] Rule 5 does not require that watch or look-out be exercised from the bridge or wheelhouse rather than from the deck.

As argued under count four and corroborated by the testimony of Randy Oakley, the Respondent’s Vessel was exceptionally well equipped to allow for navigation of the Vessel as well as for proper look-out to take place from various stations.

One key station was located on the fishing/main deck, which was equipped with: engine control equipment for throttle and forward/reverse direction, an external speaker of the VHF radio, which monitored traffic, a display of the radar providing full radar pictures reading surrounding vessels or land, a closed circuit TV system, a display of the PC plotter, a public address intercom system, and rudder angle indicators.

As such, the means to carry out a proper look-out by sight and hearing was provided on the main deck of the Vessel. [ 19 ] The finding of the Provincial Court judge is simple: whatever instruments may have been available on the fish deck, their use did not constitute “a proper look-out by sight and hearing”. The Trial Division judge (on appeal) saw no basis for holding this finding to be in error. I agree. No proper lookout was maintained in the wheelhouse (bridge), as was required. The appeal against conviction for

this charge is dismissed. (iv) Understanding of Lifesaving and Fire Fighting Equipment [20] An appeal under

section 839 is restricted to questions of law alone. Does the appeal of this count involve such a question? Arguably, it does not. That said, I will nonetheless deal with the issue. [21] The Trial Division judge (on appeal) wrote: [57] With respect to Count # 8, that is, failing to take adequate steps to ensure that the crew understood the use of the lifesaving andfire-fighting equipment as required by s. 51 of the Small Fishing Vessel Inspection Regulations SOR 82-129 made under s. 419 of theCanada Shipping Act, R.S.C. 1985, c.

S-9, the trial judge found that whatever attempts were made by Captain Ralph to give instructionon the operation of the safety equipment on board was inadequate. He stated at page 913 of the transcript that: I do not discount Captain Ralph’s evidence of the steps that he did take and the steps that he had to, you know, his brother take, but to mymind it was not organized well enough to comprise due diligence here. There was passing efforts from time to time but it wasn’t a reallyorganized kind of thing. There was a new man had come on just before this trip and not enough was done.

I understand that CaptainRalph has expressed some frustration because at times he was trying to demonstrate things such as the immersion suits that some of thecrew, Igor Dragushevsky comes to mind, didn’t seem to be interested and would prefer to be outside having a smoke while goingthrough it.

That, no doubt, is a bit of a frustration but it does not relieve you the obligation of ensuring that everybody understands thesethings and what I heard here was sort of a bit of a loose kind of an arrangement that you had when you were talking about the firefighting equipment essentially, you know, I understand that you don’t want to be turning on hoses inside the ship unnecessarily and thelike …unintelligible… that way, and, you know, if you discharge fire extinguishers, of course, well then they got to be recharged andthat’s time consuming and expensive but, you know, training does require that.

You ensure that people actually know where all of thesethings are and how they work and when you were testifying about that, you know, you indicated well you show them where they are andthey either knows how to work it or they don’t and that’s not enough, it requires more than that. So, I am satisfied here based on theevidence that I heard from the other Crown witnesses that they weren’t adequately instructed in all of the safety gear aboard this vesseland I’m not satisfied that you exercised due diligence in trying to get that done.

You know, your efforts were not enough in my view atlaw. [58] In deciding as he did the trial judge had properly reviewed the evidence before him and made findings of fact based on thatevidence that was within his jurisdiction to do so. He found as a fact that what Captain Ralph did to comply with the regulations underthis count was simply not adequate. In finding as he did the trial judge was not in error. He also was not in error in finding that theefforts of Captain Ralph to comply with his obligations under this regulation did not meet the due diligence standard.

The trial judge’sfindings in relation to this count will not be interfered with. [22] Mr. Ralph takes issue with the findings of fact by the Provincial Court judge. In his Factum, he refers to evidence concerninghis efforts to familiarize the crew with lifesaving and fire fighting equipment. This evidence was considered by the Provincial Courtjudge, who found that Mr. Ralph made only “passing efforts”, “it wasn’t a really organized kind of thing” and the crew “weren’tadequately instructed in all of the safety gear aboard this vessel”.

It has not been shown that in making these findings the ProvincialCourt judge made any palpable and over-riding error. Indeed, there is ample evidence to support such findings. Accordingly, the TrialDivision judge (on appeal) was correct not to interfere with these findings. The appeal against conviction for this charge is dismissed. (v) “Steamship” Certificate [23] There is no dispute that Mr. Ralph’s “steamship” certificate required that there be on board as a mate a person who was certifiedas a Fishing Master IV; neither was it in dispute that there was no mate on board holding this certification.

What is in dispute is whetherMr. Ralph was required to have such a steamship certificate. [24] The Provincial Court judge convicted Mr. Ralph of failing to have a “valid” steamship certificate. (This is accurate in thatwhile the certificate would have been valid had Mr. Ralph been operating his vessel in conformity with the requirements set out in thecertificate, he was not doing so. Thus, the certificate was not valid for the voyage that he undertook.) The Trial Division judge (onappeal) set aside the conviction on the basis that Mr.

Ralph was not legally required to have such a certificate, as the Melina & Keith IIwas not a “steamship” within the meaning given to that term in the Crewing Regulations. [25] In this appeal, the Crown argues that the Trial Division judge erred in law, in that the relevant definition of “steamship” is notthat contained in the Crewing Regulations, but rather that set out in

section 2[8] of the Canada Shipping Act, which definition includesvessels such as the Melina & Keith II. The requirement to have such a certificate being set out in

section 316[9] of the Canada ShippingAct, the relevant definition of “steamship” is clearly that set out in the Act in

section 2. I would allow the Crown’s appeal and reinstatethe conviction for this charge. (vi) The Rule Against Multiple Convictions [26] The rule against multiple convictions was set out in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 and in R. v.Prince, (SCC), [1986] 2 S.C.R. 480. Under the approach laid out by Dickson C.J.C. in Prince, multiple charges relate to“the same cause or matter” if two requirements are satisfied. First, there must be a factual nexus between the charges, so that the sameact grounds each charge.

Second, the second offence must not contain any additional element that distinguishes it from the first offence. [27] The rule against multiple convictions applies to regulatory offences as well as criminal offences. In McKinney v. The Queen, (SCC), [1980] 1 S.C.R. 401, the accused were convicted of hunting out of season and hunting at night with lights.

Laskin C.J.C. in a brief oral decision, upheld the decision of the majority of the Manitoba Court of Appeal that the convictions wereconsistent with the rule against multiple convictions as they involved separate delicts. [28] The convictions for failing to keep a proper lookout and failing to maintain a proper deck watch arise from the same delict, i.e.

leaving the bridge (wheelhouse) unattended. Maintaining a proper deck watch is how a proper lookout is generally maintained. Thereis, thus, a factual nexus and, in effect, the same legal obligation. The requirements under Prince being met, a stay should be entered onone count. The count that should be stayed is the one that is the less serious (R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at paragraph13; and R. v. Provo, (SCC), [1989] 2 S.C.R. 3, at page 13). The trial judge imposed fines of $300 for failure to ensurethat a deck watch was properly maintained and $800 for failure to maintain a proper lookout.

The inference follows from the fines thatthe latter was seen by the trial judge to be the more serious charge. Accordingly, the conviction for failure to ensure that a deck watchwas properly maintained is stayed. CONCLUSION [29] I would dismiss the cross-appeals against conviction by Mr. Ralph. I would stay the conviction for failing to maintain a properdeck watch. I would grant the appeal by the Crown to restore the conviction relating to the “steamship” certificate. ________________________________ M. H. Rowe J.A.

REASONS FOR JUDGMENT BY WELSH J.A.: [30] I concur in the reasons and in the result as set out above by Rowe J.A., save as follows. I would allow Mr. Ralph’s cross-appealand set aside the conviction on the first issue; that is, whether there was a sufficient number of mates on board to comply with the deckwatch requirements. In addition, I would dismiss the Crown’s appeal of Mr. Ralph’s acquittal regarding the steamship certificate, but forreasons different from those stated by the

summary conviction appeal judge. Sufficient Number of Mates for a Deck Watch [31] It is trite law that a citizen may be convicted of an offence only if the offence as charged is proven beyond a reasonable doubt. The information setting out the charge must be “sufficient to give the accused notice of the offence with which he is charged” (section581 of the Criminal Code, which applies to charges under the Canada Shipping Act, supra, by virtue of

section 795 of the Code andsection 34 of the

Interpretation Act, RSC 1985, c. I-21). Section 581(3) of the Code provides: A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count.

Section 581(5) addresses reference to a statutory provision in the charge: A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for thepurpose of determining whether a count is sufficient, consideration shall be given to any such reference. Finally,

section 583 provides: No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfilsthe requirements of

section 581 … [32] The counts in the information relevant to this appeal involved charges under the Canada Shipping Act and related regulations. The first count under appeal charged that Mr. Ralph: … did, on or about the period of 6 September 2005 to 12 September 2005 on a voyage between Catalina, NL and the fishing grounds at[location specified], being the owner and master of a fishing vessel, the Melina & Keith II, did operate said vessel on a voyage without asufficient number of mates to ensure that the deck watch complied with sections 38 to 41 of the Crewing Regulations SOR/97-390,thereby committing an offence contrary to s. 110(4)(

a) of the Canada Shipping Act, R.S.C. 1985, c. S-9, as amended; (Emphasis added.) [33] The question of law as to this charge is whether the courts below failed to properly interpret the relevant regulatory provisions. Accordingly, it is necessary to review the regulations in detail. Such an analysis was not done in the trial judge’s decision. Thesummary conviction appeal judge reviewed the regulations but, for the following reasons, he erred in their

interpretation and application(2011 NLTD 10 , 2011 NLTD(G) 10, 304 Nfld. & P.E.I.R. 97). [34] Sections 38 to 41 of the Crewing Regulations deal with deck watches.

Section 38 provides: Every ship that is not securely anchored in port or securely moored to shore shall ensure that a deck watch is maintained in accordancewith Parts 2, 3 and 3-1 of

section A-VIII/2 of the STCW [Seafarers Training, Certification and Watchkeeping] Code. [35]

Section A-VIII/2 of the STCW Code sets out “watchkeeping arrangements and principles” for vessels.

Part 2 deals with voyageplanning and deviation from the plan during a voyage.

Part 3 deals with keeping a watch at sea.

Section 9 provides: The master of every ship is bound to ensure that watchkeeping arrangements are adequate for maintaining a safe navigational watch. Under the master’s general direction, the officers of the navigational watch are responsible for navigating the ship safely during theirperiods of duty, when they will be particularly concerned with avoiding collision and stranding.

Part 3-1 sets out principles to be observed in keeping a watch, such as keeping a proper lookout.

[ 36 ]

Section A-VIII/1 of the STCW Code, which is not mentioned in

section 38 of the Crewing Regulations , deals with “Fitness for duty” and, in particular, rest periods and watch schedules. [ 37 ]

Section 39 of the Crewing Regulations provides:

(1) The master of a ship shall be on duty as required by the ordinary practice of seamen.

(2) The master of a ship shall not be counted as a member of the deck watch, unless the ship is (

a) securely anchored or moored; (b)1000 tons or less; or (

c) more than 1000 tons but less than 3000 tons and at least three deck watches are established. Because the vessel was more than 100 tons but less than 200 tons, paragraph (

b) would apply in this case. Accordingly, Mr. Ralph could be counted as a member of the deck watch under

section 39 . [ 38 ]

Section 40 of the Crewing Regulations specifies the minimum deck watch requirement for a vessel:

(1) The minimum deck watch required by this

section shall be supplemented as required by the ordinary practice of seamen.

(2) The deck watch on a ship shall consist of at least the following persons: (

a) a person in charge of the deck watch who (

i) is capable of properly operating the navigational and radio equipment with which the ship is fitted, (ii) where the ship is more than 100 tons, holds a radio operator’s certificate that is appropriate for the class of ship and the area in which the ship operates, in accordance with

section 25 … … (The remaining provisions of

section 40 are not engaged here.) [ 39 ] Accordingly, on Mr. Ralph’s vessel, the deck watch required a person holding an appropriate radio operator’s certificate who was “capable” of operating both the navigational and radio equipment. The above portions of

section 40 are relevant to the charge against Mr. Ralph, and are discussed below. [ 40 ]

Section 41 provides: No person shall act, and no master or offshore installation manager shall permit a person to act, as a member of the deck watch of a ship unless the person is the holder of a certificate appropriate for the class of ship and the area in which the ship operates. [ 41 ] It was not alleged in this count that Mr. Ralph permitted an unauthorized person to act as a member of the deck watch or that Mr. Ralph himself was not the holder of an appropriate certificate. Accordingly,

section 41 cannot be the basis for this charge. [ 42 ] The focus of the Crown’s position on this count was that the crew did not include a person with a Fishing Master IV certificate. If that requirement applies in this case, it would flow, not from the language in sections 38 to 41 of the Crewing Regulations , but from

section 29 . Section 29(1) provides: Subject to subsection (5) [which does not apply in this case], every ship that is engaged on a voyage shall have on board and employ (

a) a master; (

b) in the case of a ship of 200 tons or more or a ship certified to carry more than 50 passengers, a first mate; and (

c) a sufficient number of mates to ensure that the deck watch complies with sections 38 to 41. … [ 43 ] In this case, paragraph (

b) would not apply because the vessel was less than 200 tons. There was, therefore, no requirement under this provision for a first mate. [ 44 ] Paragraph (

c) refers to a sufficient number of mates. “Mate” is defined in

section 1 of the Crewing Regulations : “mate”, in respect of a ship, means a person, other than the master, a pilot or a rating, who has charge of the navigation, manoeuvering, operation or security of the ship. A “rating” means “a person who is a member of a ship’s crew other than the master or an officer”. [ 45 ] Section 29(3) and Table 2 deal with certificates required under the Crewing Regulations : Subject to subsection (5) [which does not apply in this case], every person who is employed in the capacity set out in any of columns 1 to 3 of an item of Table 2 to this

section on board a fishing vessel that is engaged on a voyage referred to in the heading of the column shall hold, at a minimum, the certificate set out in column 4 of that item that is appropriate to the duties of the person on the fishing vessel.

[ 46 ] Table 2 is entitled “Master and Mates Certificates – Fishing Vessels”. Column 3, which counsel indicated would apply in this case, is entitled “Person’s Capacity of Employment on a Fishing Voyage, Class III”. This category requires a specific certificate for particular positions. The table, in fact, applies only to a person acting as “master” or “first mate”. A Fishing Master IV certificate is required for the “master of a vessel not exceeding 100 tons, or a first mate”. Neither of those conditions is satisfied in this case.

The vessel was more than 100 tons and a first mate was not required (paragraph 43 above). The remaining items in column 3 of the table, relating to a class III voyage, refer only to the “master”. The certificate required by Mr. Ralph as the master in this case is not at issue in the appeal. It follows that, in the circumstances of the appeal on this count,

section 29 does not operate to require a person with a Fishing Master IV certificate. [ 47 ] With these provisions in mind, I return to the specific charge against Mr. Ralph. He was charged with operating a vessel “without a sufficient number of mates to ensure that the deck watch complied with sections 38 to 41 of the Crewing Regulations ”. As noted above, of the specified provisions, only

section 40 has relevance to this count. Applying

section 40, the information must be “sufficient to give the accused notice of the offence with which he is charged” (paragraph 31, above). [ 48 ] Under section 40(2)(a)(i), a person in charge of the deck watch must be “capable” of operating the navigational and radio equipment. There is no indication that a Fishing Master IV certificate is required in order to meet this condition. If the intention in the regulations had been to require a particular certificate in addition to the capability to operate the navigational and radio equipment, that could have been stated.

Indeed, the requirement for a specified certificate is found in subsection 40(2), subparagraphs (a)(ii) and (iii)(A), as well as in paragraphs (

b) and (c). Paragraph 40(2)(

d) uses the language “qualified” rather than “capable of properly operating”, with no reference to a certificate. [ 49 ] It follows that, under this charge, Mr. Ralph could be convicted of failure to comply with section 40(2)(

a) only if the Crown established that there was an insufficient number of persons on the vessel, responsible for the deck watch during the voyage, who were “capable” of operating the navigational and radio equipment. In fact, the evidence was directed, not to this issue, but to whether there were sufficient persons who had a Fishing Master IV certificate. While it may be inferred that a Fishing Master IV certificate would ensure that the person was capable of operating the equipment, it is not the certificate, but the capability, to which section 40(2)(

a) speaks. In the result, the Crown did not prove beyond a reasonable doubt that Mr. Ralph failed to comply with section 40(2) (

a) of the Crewing Regulations . [ 50 ] It is necessary, then, to consider section 40(1) which I repeat here for ease of reference: The minimum deck watch required by this

section shall be supplemented as required by the ordinary practice of seamen. [ 51 ] The breadth of the language in this provision must be assessed in light of the remaining details set out in subsections (2) to (6). If, to establish an offence pursuant to

section 40 of the Crewing Regulations , it would be sufficient for the Crown to lead evidence regarding “the ordinary practice of seamen”, the details that are, in fact, included in the remaining subsections would be superfluous. Consistent with principles of statutory

interpretation, the

section must be read as a whole. [ 52 ] Given the detail set out in

section 40 generally, particularly with regard to certificates, subsection (1) could be relied upon here only if the Crown identified how the specifications set out in subsection (2) are deficient and must be supplemented as required by the ordinary practice of seamen. In this case, the Crown did not satisfy that threshold. Compliance with section 40(2) cannot be vitiated simply by evidence that a Fishing Master IV certificate is a desirable qualification. [ 53 ] Finally, I note, the trial judge acquitted Mr.

Ralph of count 6 that, on September 12, 2005, he did: … fail to ensure that a deck watch was properly maintained as required by s. 40 of the Crewing Regulations SOR/97-390 to wit: he failed to have a person in charge of the watch who was capable of operating the navigational equipment with which the vessel was fitted … The acquittal was not appealed to the

summary conviction appeal court or to this Court. [ 54 ] Based on the above

interpretation of the regulatory provisions, the

summary conviction appeal judge erred in his conclusion that: [35] It follows that the only person that Captain Ralph could trade off watch duties with would have to be someone with the minimum mate qualifications, which the evidence disclosed, as found by the trial judge, was a fishing master class IV. [ 55 ] Further, based on a proper

interpretation of the relevant regulations, the Crown, having focused on the assumption that a Fishing Master IV certificate was required, failed to prove the offence as charged. Accordingly, I would allow the appeal, order that the conviction on this count be set aside and enter an acquittal. The Steamship Certificate [ 56 ] I concur with the conclusion of Rowe J.A. set out above that the vessel was a “steamship” within the meaning of the Canada Shipping Act . In the result, the

summary conviction appeal judge erred in granting the appeal and setting aside the conviction on this count on the basis that the vessel was not a steamship. Nonetheless, I am satisfied that, while the

summary conviction appeal judge erred in his reasoning, his conclusion that the conviction must be set aside was correct. [ 57 ] I would dismiss the appeal from the

summary conviction appeal judge’s acquittal on the basis that the charge, as stated in the information, was not proven. Mr. Ralph was charged that he did: … use the said steamship without having on board a valid certificate issued under s. 319 of the Canada Shipping Act R.S.C. 1985 c. S-9 as amended, contrary to s. 316(5) of the said Act, thereby committing an offence … [ 58 ] The certificate is described in the legislation as an “inspection certificate” which is issued following an inspection of the vessel.

Section 316(5) of the Act provides: It is the duty of the owner to have an inspection made under this section, and no steamship described in this

section shall be used unless there is on board and in force a certificate or certificates issued under

section 318 or 319, applicable to the voyage on which the steamship is about to proceed and to the trade in which it is engaged. (Emphasis added.) [ 59 ] The charge was not that Mr. Ralph failed to comply with the terms of the certificate, but that he did not have a valid certificate on board, contrary to section 316(5). The trial judge found as a fact that the necessary certificate was on board on the day the vessel sank. However, in convicting Mr.

Ralph, the trial judge took the position that compliance with the limitations specified on the certificate, one of which was “mate requires FM4”, “was a condition of the validity of the certificate” (italics added). In this, the trial judge erred. [ 60 ] The validity of the certificate did not depend on whether Mr. Ralph was in compliance with its terms.

The count in the information uses the shorthand version of “valid certificate” which, when read with section 316(5), must mean a certificate that is granted after an inspection and is “in force” at the relevant time; that is, the certificate is a properly issued certificate, for the particular vessel, which has not expired. [ 61 ] In the result, I would dismiss the Crown’s appeal on this count, though for a different reason than the

summary conviction appeal judge.

SUMMARY AND DISPOSITION [ 62 ] To summarize the net effect of the above two reasons for decision, leave to appeal is allowed and, regarding the appeal and cross-appeal:

(1) The Crown’s appeal of the acquittal from the charge of failure to have a valid steamship certificate on board, contrary to section 316(5) of the Canada Shipping Act is dismissed.

(2) Mr. Ralph’s cross-appeal from the conviction on the charge of operating the vessel without a sufficient number of mates to ensure that the deck watch complied with sections 38 to 41 of the Crewing Regulations is allowed, the conviction is set aside and an acquittal is entered.

(3) Mr. Ralph’s cross-appeal from the conviction on the charge of failing to maintain a proper look-out contrary to Rule 5,

Schedule 1 of the Collision Regulations is dismissed.

(4) Mr. Ralph’s cross-appeal from the conviction on the charge of failing to ensure that a deck watch was properly maintained as required by

section 38 of the Crewing Regulations is dismissed but, applying the principle in R. v. Kienapple , a stay is entered on that count.

(5) Mr. Ralph’s cross-appeal from the conviction on the charge of failing to take adequate steps to ensure that the crew understood the use of the lifesaving and firefighting appliances is dismissed. [ 63 ] In the result, Mr. Ralph remains convicted of the charges referenced in (3) and (5) above, and is required to pay fines of $800 and $400 in respect of those convictions. _____________________________ B. G. Welsh J.A. I Concur: __________________________ L. D. Barry J.A.