R. v. Hudson and Masiliit Corp., 2016 NUCJ 7

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Hudson and Masiliit Corp. 2016 NUCJ 07 Date: 20160310 Docket: 08-13-384 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: George Hudson and Masiliit Corporation ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): J. Potter Counsel (Accused): A. Crowe; D. Hearn Location Heard: Iqaluit, Nunavut Date Heard: July 17, 2015 Matters: Interlocutory Application re: Crown Disclosure; Fisheries Act , RSC 1985, c F-14, s. 78 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] George Hudson and Masiliit Corporation [the accused] are charged pursuant to the Fishery (General) Regulations , SOR/93-53 [ Fishery (General) Regulations ], with carrying out fishing activities outside of Canadian waters. Mr. Hudson was captaining the vessel the Suvak , which is owned by Masiliit Corporation. [ 2 ] It is alleged that fishing nets and related equipment (collectively referred to as “gear”) were outside of Canadian waters, in Greenlandic waters.

The position of the accused is that the nets were properly set in Canadian waters and drifted into Greenlandic waters. [ 3 ] The accused say that nets drifting across the boundary into Greenlandic waters is not an uncommon occurrence due to many vessels fishing in a confined area, with an irregular boundary, and unpredictable tides and currents.

They submit that the Department of Fisheries and Oceans [DFO] was aware of this and had not previously warned or charged any vessels. [ 4 ] The accused will rely upon the following defences at trial: a. due diligence; b. officially induced error; and, c. that hauling in gear does not constitute “fishing” for the purposes of the Fisheries Act , RSC 1985, c F-14, s 79 [the Act]. [ 5 ] The accused seek disclosure of records which they submit will support their defences of due diligence and officially induced error. II.

BACKGROUND [ 6 ] In October of 2012, the Suvak was fishing for turbot in the Davis Strait, between Baffin Island and Greenland. International fishing boundaries in this area are set by the North Atlantic Fisheries Organization . The demarcation between Canadian waters and Greenlandic waters runs approximately down the middle of the Davis Strait and, as such, it is not a straight line, but rather, it loosely follows the contours of the land. [ 7 ] Turbot is caught using nets, called gill nets. The nets are weighted on the bottom and have flotation devices on the top so that they hang like a curtain in the water.

The size of the holes in the nets is determined by the species of fish being caught. The fish swim into the holes in the netting and their gills get caught on the netting. [ 8 ] The nets used on vessels such as the Suvak are up to 1.5 miles long. Setting the nets can take several hours. While the net is being set or being hauled in, the engines are running and the vessel is moving. [ 9 ] The DFO runs an At Sea Observer [ASO] Program which involves having an independent observer on board vessels to observe, record, and report information to the DFO.

The nature of the information collected is wide ranging and is used for a variety of purposes,

from biological research to regulation and compliance. [ 10 ] It is not clear whether all or only some fishing vessels in the Davis Strait were required to have ASOs on board in 2012. The ASOs are employed by third parties; however, they are licensed by the DFO and are required to report to the DFO in the manner prescribed by the DFO. The ASOs are independent of the fishing companies. [ 11 ] Duties of ASOs are set out in the Fishery (General) Regulations : 39.

(1) The Regional Director-General may designate as an observer any individual who is qualified and trained to perform any of the duties described in subsection (2) and who (

a) does not hold a certificate of accreditation issued under the Professional Fish Harvesters Act , S.N. 1996, c. P-26.1, or a fisher’ s registration card; (

b) does not purchase fish for the purpose of resale; and (

c) is not an owner, operator, manager or employee of an enterprise that catches, cultures, processes or transports fish.

(2) The Regional Director-General shall assign to an observer designated under subsection (1) one or more of the following duties: (

a) the monitoring of fishing activities, the examination and measurement of fishing gear, the recording of scientific data and observations and the taking of samples; (

b) the monitoring of the landing of fish and the verification of the weight and species of fish caught and retained; and (

c) conducting biological examination and sampling of fish. [ 12 ] The ASOs are required to identify the location where gear is set and the location of the gear when it is hauled back. [ 13 ] If the ASO observes an irregularity they are required to advise the Master of the vessel and to report the occurrence to the DFO. ASOs are not investigators; their responsibilities are to observe and report. [ 14 ] ASOs are not trained navigators. The information an ASO obtains regarding the location of a vessel would be taken from the vessel’s log.

However, ASOs do have personal Global Positioning Systems [ GPS] with them and some may take readings on their personal GPS to compare to the vessel’s log. [ 15 ] ASOs are required to complete various forms, the content of which is determined by the DFO. One such form is an Occurrence Report , which is completed should an ASO observe an irregularity, such as non-compliance with the terms of the fishing license. In addition to the required forms, ASOs also provide their notebooks to the DFO. [ 16 ] There is evidence from the captains of three other vessels also engaged in turbot fishing in the Davis Strait.

Their evidence explains why fishing close to the demarcation between Canada and Greenland is necessary, attests to gear being hauled in from Greenlandic waters on occasion, and to the ASO being made aware of this. III. REMEDY SOUGHT [ 17 ] The accused seek disclosure of the following: a. Observer reports, Occurrence Reports and all other related material for the vessel Suvak filed by the ASO during the 2011 fishing season; and, b. ASO reports and Occurrence Reports filed by three other vessels, the Belle Island Banker, the Nain Banker, and the Atlantic Optimist , for the 2008 -2011 fishing seasons. IV. ISSUES

[18] Is the disclosure being sought first party disclosure and thus subject to the Stinchcombe (R v Stinchcombe, (SCC),[1991] 3 SCR 326, 68 CCC (3d) 1 [Stinchcombe]) standard, or is it third party disclosure and thus subject to the O’Connor (R vO’Connor, (SCC), [1995] 4 SCR 411, 103 CCC (3d) 1 [O’Connor]) standard? [19] If subject to the Stinchcombe regime, has the Crown justified non-disclosure of the records? [20] If subject to the O’Connor regime, do the records meet the likely relevant test? V. POSITIONS OF THE PARTIES A.

Defence position [21] The accused submit that the disclosure sought falls within the regime from Stinchcombe because the documents are in thepossession and control of the investigating agency, the DFO. [22] The accused argues that privacy concerns, if there are any, are minimal as the information sought is shared within governmentdepartments and within the industry. [23] They submit that the information is relevant to the defence of due diligence as they will argue at trial that industry practice is oneof the factors the Court must consider.

They submit that the information is also relevant to the defence of officially induced error sincethe ASO has the duty to report occurrences and that, since similar incidents were either not being reported by the ASO, or not being actedupon by the DFO, the incidents were tacitly acknowledged as acceptable practice. B. Crown position [24] The Crown argues that the records being sought are third party records and the application should have been brought in accordancewith the procedure set out in O’Connor.

They submit that some of the information sought may be commercially sensitive and notice tothe owners of the other vessels is required. [25] In relation to the records of the vessel Suvak from years prior to the date of the alleged offence, the Crown submits that these arenot disclosable as they are not “fruits of the investigation” and are not relevant to the incident alleged. [26] The Crown submits that regardless of which standard is applied, Stinchcombe or O’ Connor, the records sought do not meet therelevancy test and are therefore not disclosable.

The Crown submits that the information sought is not relevant to the defence ofofficially induced error as the accused are not relying upon advice sought from a government official, but on industry practice. VI. ANALYSIS A. Are the records subject to the Stinchcombe or O’Connor disclosure regime?

[ 27 ] Stinchcombe disclosure is all material that is in the possession or control of the prosecuting agency and which is relevant to the matter being prosecuted, subject to claims of privilege or informer confidentiality. This material is commonly referred to as the “fruits of the investigation”. [ 28 ] While there may be privacy interests in the records that make up part of the Stinchcombe disclosure, the assumption is that the material is relevant or it would not have been gathered during the investigation. It is also assumed that the material will likely constitute part of the case against the accused.

Generally, the interests of an accused in obtaining the material outweighs any privacy interests. It is for this reason that when materials falling within the category of Stinchcombe disclosure are not provided, the onus is on the Crown to justify non-disclosure. [ 29 ] Most often, the investigating agency and the prosecuting agency are not the same entity. The most common example of this is prosecutions under the Criminal Code , RSC 1985, c C-46, and drug prosecutions, where the police investigate and charge and the prosecution service prosecutes.

However, for the purposes of complying with Stinchcombe disclosure requirements, the police and the prosecution services are treated as one entity and both are bound by the duty to disclose. [ 30 ] In the matter before me, there are also two agencies involved: the DFO and the prosecution service. Unlike a police force, the DFO has many responsibilities in addition to the enforcement of laws falling within its mandate and the investigation of offences.

However, in those instances where it does investigate and charge, the DFO, like a police force, is bound by the duty to provide disclosure as required by law. [ 31 ] The determination of whether a particular government agency is to be treated as an investigating agency or as a third party agency will depend to some extent on the nature of the information sought.

One entity may be treated differently, depending on the circumstances. [ 32 ] In R v McNeil , 2009 SCC 3 , 238 CCC (3d) 353 , the issue was whether police disciplinary records and criminal files in relation to the investigating officer were disclosable and, if so, under what regime. The court held that while the police and the Crown may be viewed as one entity for disclosure purposes, they were clearly separate and independent.

Accordingly, production of police disciplinary records and criminal investigation files involving a third party, the investigating officer, was to be determined in the context of an O’Connor application. [ 33 ] The records being sought in the within matter fall within two categories: records in relation to other vessels, and records in relation to the vessel which is the subject of the prosecution, but which do not relate to the offence being prosecuted. [ 34 ] Regarding the records relating to other vessels, these records have no connection to the alleged offence or the investigation.

The DFO’s role as the agency holding these records is that of a third party and accordingly, disclosure must be sought under the O’Connor regime. [ 35 ] Regarding the records relating to the Suvak, but from years prior to the alleged offence, these are in the possession of the DFO as part of its regular data gathering for a variety of purposes. Even if it can be said that at least one of the purposes of gathering the data is for investigative purposes, and this is not clear, there is no nexus between those records and the matter currently before the Court.

The fact that the records relate to the same vessel is not sufficient to bring them within the Stinchcombe disclosure regime. Accordingly, disclosure of these records must be sought under the O’Connor regime. Clearly, since the records relate to the accused in this matter the notice requirement is moot. B. Process under the O’Connor regime [ 36 ] The procedure to be followed when seeking disclosure under the O’Connor regime is: a. notice to the third party record holder; b. notice to persons who are the subject matter of the records or who may have a privacy interest in the records;

c. evidence submitted to establish that the records are likely relevant; d. any claims of privilege are asserted and determined; and, e. if records are likely relevant, the court will order that the records be produced to the court for inspection and will determine whetherand to what extent there should be disclosure to the defence. [37] Having found that the records are properly the subject of an O’Connor application, the first step would be to remit the matter backto the parties so that notice can be provided to those who are the subject matter of the records.

In this instance, notice is to the owners ofthe three other fishing vessels. [38] However, the Crown contends that the accused have not met the threshold of establishing that the records are “likely relevant”. Ifthis is the case then it is unnecessary to take the matter further.

The Crown argues that failure to warn or charge on other occasionscannot be used to advance a defence of officially induced error or due diligence and for that reason the records are not relevant. [39] The accused contend that the records will show that retrieving gear in Greenlandic waters was a common occurrence on all vesselsfishing in the Davis Strait, that the practice was known to the DFO, and that the DFO’s failure to warn or charge vessels when theseincidents occurred was tacit acceptance of the practice which the accused were able to rely upon.

The accused submit that the recordsare likely relevant to the defence of due diligence and to the defence of officially induced error. C. The defence of officially induced error: [40] In the case of R v Jorgensen, (SCC), [1995] 4 SCR 55, 102 CCC (3d) 97 [Jorgensen], Lamer C.J.C. stated: [36] In

summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crownhas proven all the elements of the offence.

In order for an accused to rely on this excuse, she must show, after establishing she made anerror of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advicein her actions. [41] In Levis (City) v Tetreault; Levis (City) v 2629-4470 Quebec Inc., 2006 SCC 12 , [2006] 1 SCR 420, 207 CCC (3d) 1, thecourt confirmed the existence of the defence of officially induced error and adopted the criteria set out in Jorgensen, at paras. 28-35stating: 26 After his analysis of the case law, Lamer C.J. defined the constituent elements of the defence and the conditions under which it willbe available.

In his view, the accused must prove six elements: (1) that an error of law or of mixed law and fact was made; (2) that the person who committed the act considered the legal consequences of his or her actions; (3) that the advice obtained came from an appropriate official; (4) that the advice was reasonable; (5) that the advice was erroneous; and (6) that the person relied on the advice in committing the act. [42] In Canada (Attorney General) v Shiner, 2007 NLCA 18, 46 CR (6th) 268 [Shiner], the Court considered the defence of officiallyinduced error in the context of a prosecution for unlawfully selling blueback seal pelts.

Mr. Shiner relied upon his knowledge of thesealing industry and the fact that bluebacks had been harvested in previous years, that the harvesting of bluebacks was well known to theDFO, and that there had never been a prosecution. Mr. Shiner argued that this was tacit approval by the DFO which substantiated thedefence of officially induced error. The Court of Appeal rejected the defence, stating that the matter:

“…was whether the DFO had tacitly permitted the sale of bluebacks prior to 1996 and, by its conduct then and during the 1996 hunt, misled Shiner respecting prosecution, a matter obviously not covered by the defence of officially induced error.” [ 43 ] In my view, the accused in this matter plead similarly to Mr. Shiner in relation to the defence of officially induced error. The information sought does not relate to any of the elements which the accused must establish for the defence to be successful.

Accordingly, I am unable to conclude that the records are likely relevant to the defence of officially induced error. D. The defence of due diligence [ 44 ] I must now consider if the records are likely relevant to a potential defence of due diligence. [ 45 ] As I understand the position of the a ccused , they will argue that all reasonable steps were taken to prevent the gear from drifting into Greenlandic waters.

They seek access to the records of the Suvak from prior years and to the records of the other fishing vessels to assist them in establishing that the steps taken were objectively reasonable and were viewed as such by the DFO on prior occasions. [ 46 ] While industry practice is not determinative on the issue of due diligence, it may be one factor that the court may consider. Accordingly, some, although perhaps not all, of the records sought are likely relevant to an issue at trial.

It will be for the trial court, not this Court, to determine if the industry practice was reasonable and, if so, whether these accused acted in accordance with industry practice. VII. CONCLUSION [ 47 ] The application is denied. The application may be brought under the O’Connor regime, with proper notice to the third parties whose privacy interests may be engaged. Dated at the City of Iqaluit this 10th day of March, 2016 ___________________ Justice S. Cooper Nunavut Court of Justice