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.. . . Cite as: R. v. Brown, 1989 NSCO 15 1989 ~ PROVINCE OF NOVA SCOTIA COUNTY OF SHELBURNE C. SB. 2664B IN THE COUNTY COURT OF DISTRICT NUMBER TWO BETWEEN: DOUGLAS W. BROWN APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT HEARD BEFORE: The Honourable Judge G. B. Freeman PLACE HEARD: Shelburne, Nova Scotia DATE HEARD: February 17, 1989 COUNSEL: Donald G. Harding, Esq. for the Crown S. Clifford Hood, Q.C. for the Appellant DECISION DATE: April 3, 1989. DECISION ON APPEAL ..
1 This is an appeal by Douglas conviction and sentence for violating vessel's fishing license by over-fishing for haddock. The Appellant was fined $800 and catch valued at $10,884.50 was ordered forfeited. The charge alleges that the appellant "did fail to comply with a condition of a l . i . authority of Subsection 33(1) Regulations, 1985, to wit: did take in excess of of haddock specified in Variation Variation Order t 1988-029, contrary to Subsection 33(2) of said Regulations, and did thereby commit an offence pursuant to Subsection 61(1) of the Fisheries Act, R.S.C. amended. He has appealed from his conviction on three grounds: 1. The variation orders on which the charge was based were not proven. 2. The variation orders resulted from an improper delegation of authority. 3. It was not proven that the Appellant's vessel was of a class affected by the variation orders. W. Brown from his a condition of his a portion of his c ense specified under the of the Atlantic Fishery the quantity Order t 1988-027, and the 1970, c. F-14 as were not legal, having
2· No yiva voce evidence was called determined on the following "Agreed Statement of Facts": "1. The license, condition, Exhibit 12, were valid for the offence and the accused was fishing pursuant to same. "2. On February 19th, 1988, the did take in Divisions 4X and 5 by a Class C vessel, less than 19.7 meters length overall, 39,790 of haddock and Exhibit 13 is verification of that weight. "3. Defence admits orders in Exhibit 3 were 1ssued on the dates set forth on them and subject to were in effect at the time of the offence. "4. Notice pursuant to Section 5 of the Atlantic Fishery Regulations was given and in the forms set out in Exhibit 15.". "5. Neil Bellefontaine signed and issued all three variation orders referred 14. "6. Neil Bellefontaine Regional Director on the dates the variation were made by him. "7. The accused Shelburne, Nova Scotia, on the 19th day of February, 1988. "8. Notice pursuant Evidence Act of the documentary required was given. "Dated this 19th day of May, A.D. 1988." The exhibits indicate fishing on the Allison & Kristan, a 64-foot vessel licensed to fish by means of otter trawl, that is, a dragger. holder is shown as Small & Small Fish' Ltd. Brown was apparently operating the vessel. license, Exhibit 12, indicate the Allison & Kristan is a Class " C-2 vessel. and the case was Exhibit 1 and the the date of accused pounds that the variation their legal validity brodcast to in Exhibit was not the orders landed his fish at to the Canada evidence where that the Appellant was The license on behalf of which The conditions of
3 , The reference to Exhibit 13 in paragraph 3 of the admitted facts is in error: Exhibit 1 3 i~ a tally sheet. Exhibit 14 refers to two, not three, Variation Orders, and I assume that was the reference intended. The variation orders in Exhibit i3 referred to in paragraph 3 of the admitted facts are reproduced as follows: Haddock Quota Variation Order Atlantic Fishery Regulations, 1985 1988-027 Pursuant to section 4 of the Atlantic Fishery Regulations, 1985, being Order-in-Council P.C. 1985-3662, as amended, the Regional Director-General hereby makes the following Order respecting haddock fishing in Subarea 5. 1. The fishing quota as set out in subsection 88(1) of the said Regulations for haddock fishing in Subarea 5 for Class C vessels reverts to 10 per cent. 2. The fishing quota as set out in subsection 88(2) of the said Regulations for haddock fishing in Subarea 5 for Class C vessels is hereby varied to be 9000 kg. In making this Order the Regional Director-General hereby revokes items 2 and 3 of the previous Haddock Close Time and Quota variation Order Atlantic Fishery Regulations, 1985 1988-013 This Order comes into effect 12:00 h February 11, 1988 and will remain in effect 'until December 31, 1988, unless otherwise revoked. Dated at Halifax, Nova Scotia, this 11th day of February, 1988. Haddock Quota Variation Order Atlantic Fishery Regulations, 1985 1988-029 Pursuant to section 4 of the Atlantic Fishery Regulations, 1985, being Order-in-Council P.C. 1985-3662, as amended, the Regional Director-General hereby revokes item 2 of the previous .'
4 Haddock Close Time and Quota Variation Order Atlantic Fishery Regulations, 1985 The fishing quota as set out in subsection 88(2) of the said Regulations for haddock fishing in vessels reverts in 1500 kg effective February 16, 1988. Dated at Halifax, Nova Scotia, this 15th of February, 1988. variation Order 1988-027 Canadian segment of George's Bank, and Variation Order relates to Division 4X, an area southwestern Nova Scotia from Halifax Fundy and bordering on Subarea 5. both areas, and the Appellant was admitted to have been in both, he is charged not with the overfishing as such, but for ~ violating a condition of his license. greater than the quota for either area. The notices broadcast· in paragraph 4 of the statement of facts defined class "C n as those less than 19.8 meters in overall gear, or otter trawl. It may be noted that equivalent of 65 feet. THE FIRST GROUND The variation orders establishing became a condition of Brown's fishing license were admitted subject to their legal validity. the extent of the Crown's duty to prove earlier orders upon 1988-011 Division 4X for Class C relates to Subarea 5, the 1988-027 including the waters of Harbour to the Bay of While the quotas differ for _fishing The admitted catch was the form admitted in vessels length using mobile 19.8 meters is the the quota that At issue in this ground is
5 which these orders are necessarily founded. Presumably those ~ are Haddock Close Time and Quota Variation Order 1988-013 in the case of Variation Order 1988-027 for Subarea 5 and Haddock Close Time and Quota Variation Order 1988-011 in the case of Variation Order 1988-029 for Division 4X. s. 33(1) of the Regulations authorizes, for purposes of management and control of the fisheries, the imposition on fishing licenses of conditions which may include species and quantities of fish permitted to be taken, and the period during " which fishing is permitted. S. 33(2) says "no person fishing under the authority of a license shall contravene or fail to comply with any condition of the license." It was made a condition of the license of the Appellant that he should obey the provisions of whatever variation orders should be in effect. Variation orders are orders issued by fisheries officials to control species and quantities of fish permitted to be taken, and the periods when fishing is permitted. s. 34 of the Fisheries Act author ize s the Governor-in-Council to make Regulations, and s. 34(m) provides for Regulations "authorizing a person engaged or employed in the administration or enforcement of this Act to vary any close time or fishing quota that has been fixed by the Regulations." "
6 The Regulations resulting from s. and 5 of the Atlantic Fishery Regulations: n4. A Regional Director-General may, by order, vary any close time or fishing quota Regulations. n S.5 requires that notice of the variation be given to the persons affected or likely to be affected by the variation in various specified ways. The variation orders relevant to the present case were broadcast in the over the Canadian Coast Guard mar~ne radio station in Yarmouth, N.S. The relevant regulatory XXIII of the Regulations establishing Groundfish close times by species, stock area, and vessel classification. 24 and 25 of Schedule XXIII govern Subarea 5 are closed to haddock fishing by Class C vessels from Dec. 30 to Dec. 31 in each year. XXIII is set forth in s. 87 of th~ Regulations. The nominal close periods clearly intended to be expanded by variation orders. S. 88 of the Regulations, central to the scheme relevant in the present case, is as follows: n88(1) Where, " Regulations, a person is prohibited from fishing for a species of groundfish in a engaged in a fishing trip in that stock Area for another species of groundfish, retain a quantity of incidentally caught grounflsh 34(m) are SSe 4 fixed by these usual and accepted manner scheme hinges on Schedule Subsections 23, haddock. Division 4X and The authority for Schedule in Schedule XXIII are regulatory pursuant to these Stock Area and is that person ~ay
7 not exceeding a fishing quota of 10 per cent of the total weight of all groundfish on board his vessel that are not prohibited and were taken in that Stock Area during that fishing trip. "(2) Where fishing for a species of groundfish with a Class A vessel or Class C vessel in Subdivision 4Vn, Division 4VsW, 4X, 5Y or 5Z is prohibited a person may, with a Class A vessel or Class C vessel, fish for and retain during anyone fishing trip ,a quantity of the prohibited species not exceeding a fishing quota of 1,500 kg." For example, if a variation order is in effect extending the Schedule XXIII close time to a particular period, thereby making a species of fish a.~prohibited species" during that period, SSe 2 of s. 88 of the Regulations may be used by the Department to impose "trip limits" for that species by varying the 1,500 kg. fishing quota. Unless there has been a variation of the close period under Schedule XXIII, a variation order purporting to change the by-catch or trip limit quotas under s. 88 cannot be effective because the species to which it relates has not been made a prohibited species, saving only for the nominal period of December 30-31. The Crown has referred to s. 19 of the Fisheries Act which states: "no one, without lawful excuse, the proof whereof lies on him, shall fish for, buy, sell or have in his possession any fish, or portion of any fish, in a place where at that time fishing for that fish is prohibited by law." Under the relevant legislative scheme there must be a variation order extending the Schedule XXIII close time before fishing for haddock is "prohibited by law".
8 When s. 88 of the Regulations is at issue, and it is necessary for the Crown to prove that a species is a "prohibited species", the usual practice is extending the close time for that species to the period alleged offence. I have found t~at proof of the variation order establishing a species as a prohibited meaning of s. 88 is a necessary element of the Crown's case R. v. Arenburg 87 N.S.R. (2d) 164. The Crown did not fo110that practice in the present case. Is evidence that haddock otherwise before the court? Variation orders are usually proved copy of the order issued by the together with proof of notice to affected persons. Variation Order 1988-011 or -013 is in evidence; s. Canada Evidence Act does not apply. present case that the relevant variation orders and there appears to be no practice of doiQg so. notice cannot be taken of them under Instruments Act." They must be pro~ed actual knowledge of the court resulting variation order in a previous case is not a valid basis for taking judicial notice. The trial judge stated that "variation orders. have the force of law and the Court is able to take cognizance of the variation orders in the same way the to prove a variation order of the species within the in is a prohibited species by producing a Regional Director-General No copy of 21 of the There is no evidence in the were gazetted, JUdicial s. 16 of the Statutory afresh in each case, from production of a • court is able to
9 take cognizance of any law of the country which. . . is within the jurisdiction of the person or body consider the variation orders as having the force of law because the chain of authority going back to Parliament is valid and within the constitution and is law that this court is apply." While the chain of authority is undoubted what I must consider, with respect, is how the court in the absence of even a copy of the varition orders c.~n knowledge as to how and to what end the authority was exercised and whether, under s. 5 of the Regulations, given to affected parties. By its admission that variation Orders 1988-027 and -029 "subject to their legal validity were in effect at the time of the offence" the defence must have intended Crown of further proof of their existence. been in effect in the absence of close time variations, presumably had been made by the earlier which they referred. The Crown admission of the orders as an admission proving the substructure on which admission is sufficient to distinguish defence could not have intended proof of the previous orders. The reference to the "legal validity" of referred to the manner in which the orders were issued, which is making it • I bound to properly be fixed with notice has been to relieve the They could not have which variation orders to was entitled to rely on the of the various facts they were based. The R. v. Arenburg. The to hold the Crown to strict the orders
dealt with as the second ground of the appeal. As the orders in question are referred to as "Haddock Quota Variation Orders" and make reference to Haddock Close Time and Quota Var~ation Order Atlantic Fishery Regulations, 1985, 1988-011 and 1988-013 it may be inferred that Variation Orders 1988-011 and -013 extended the close time for haddock fishing in Subarea 5 and Division 4X to the relevant period. The Crown is also assis.t;ed by the presumption in favour of the regularity of official documents, but I would not go so far as to find that presumption would save the variation orders in question in the absence of the incorporating reference on their face and their admission by the defence • . I find that haddock may be inferred to have been a prohibited species at relevant times, and that Variation Orders 1988-027 and -029 have been proved. SECOND GROUND The ground of delegation, so called, was argued forcefully by the defence, and is an issue in a number of other fisheries appeals, several of which were heard concurrently with the present one. To be determined is the question whether variation orders must be signed personally by J.-E. Hache', the Regional Director General, or whether it is permissible for him to
11 , designate a person to sign for hIm in his absence. of the statement of facts refers signed by Neil Bellefontaine on behalf of the Director but there are only two in Exhibit '4 and one of those, 1988-029, appears to have been signed by J.-E.Hache' personally. The position of Regional defined either in the statute or the officers are appointed by the Governor-in-Council. may appoint fisheries guardians and certain inspectors but the Act does not appear to give him broad Nevertheless as head of the department, responsibile to the Governor-in-Council for its the minister must exercise an implied or conventional authority to appoint officials responsible to himself and to assign duties. In the absence of evidence appointment, the Regional Director General must be be an official appointed by the minister whose duties include the issuance of variation orders under Regulations. Under ·s. 34(m) of the Act, reading back from SSe and 5 of the Regulations with the aid regularity, the Regional Director engaged or employed in the administration or enforcement of this Act. " s. 4 of the Regulations refers only to the Director General as the person authorized to "by order, vary any Paragraph 5 to three variation orders General, Director General is not regulations. Fisheries The Minister powers of appointment. and the person administration, their of an Order-in-Council presumed to SSe 4 and 5 of the 4 of the presumption of General must be "a person Regional
12 , close time or fishing quota fixed by these Regulations." There is nothing in the statute and Regulations, nor in the evidence, to offer guidance as to Director General can delegate or issuing variation orders to persons responsible to name persons to act in his absence. The defence has invoked the maximum "delegatus non potest delegare". The translaton .. in (4th) is as follows: "A delegate cannot delegate~ cannot delegate his functions to a subagent the knowledge or consent of person to whom an office or cannot lawfully devolve the duty on another, unless he be expressly authorized to do so." It would appear that the duty not to delegate is owed by the delegate to his principal, who might have objections to being bound by a stranger. exist only in the absence of consent or authorization, which can be provided by the principal. The regularity would cast the onus of proving the absence of consent or authorization upon the person contesting the actions of the agent, that is, the Appellant! There is nothing in the evidence to establigh lack of approval by the Minister. question of reverse onus. The Crown has discharged its duty of proving the variation orders, aided regularity. It is then open to presumption. whether the Regional assign responsibility for him, or to Black's Law Dictionary an agent without his principal; the a duty is delegated understandable The duty appears to presumption in favour of That is not a by the presumption of the defence to rebut that
13 In R. v. Harrison (1977) Justice Dickson, as he then was, Professor Willis' article in 21 C.B.R. he states at p. 264: " •• in their application of the ~~ maximum delegatus non potest governmental agencies, the courts have in most cases preferred to depart from the literal contruction of the words of the statute which would require them to read in the word 'personally' and to construction as will best accord with the facts of modern government which, being carried on in by elected representatives but in practice by civil servants or local government officers, requires them to read in the words 'or any person authorized by it.'" It may be helpful to consider whether the issuance of a variation order is administrative or True to form, perhaps, for matters under the Fisheries Act, variations orders appear at first accurately, the regulatory structure characteristics of both. A variation amendment to regulations passed by the Governor in Council, in this case to Schedule XXIII and Section BB. legislative in form. Nevertheless, the purpose served by variation orders is administrative. In essence--in pith and substance--they are administrative measures. They permit access to fish stocks to be speeded up or slowed down, halted or resumed, in response volatile current data. A traffic policeman performs the same essential function with a wave of his 1 S.C.R. 23B S.C.C. Mr. refers with approval to 257 on delegation where delegare to modern adopt such a theory undoubtedly legislative in nature. blush to be both. More gives them apparent order is a temporary It therefore seems to hand, an air traffic
controller with a spoken directive. Act is the legislation establishing the policy fish stocks shall be controlled by a system of quotas and close times imposed by regulation and varied by "a person employed in the administration or encorcement of this Act." specific regulatory machinery Governor-in-Council in s. 88 and Regulations. The Regional Director administrative person empowered by s. operate the machinerY7 variation orders are the levers he pulls to do so. Despite certain appearances variation orders must be considered legislative measures. They were obviously seen Parliament when responsibility for the day to day decisions was entrusted to "a person engaged enforcement of this act". Subdelegation of powers under s. Act was closely considered by the Ontario Court of Appeal in Peralta and the Queen (1985) 16 D.L.R. confirmed the right to delegate federal powers the Ontario Minister of Fisheries was empowered to impose quotas ~ on Great Lakes species. While the issues are substantially different from the S. 34(m) of the Fisheries that access to engaged or The was created by the Schedule XXIII of the General is the 4 of the Regulations to to the contrary, administrative and not as administrative by in the administration or 34 of the Fisheries Re (4th) 259. That case to a province:
1'5 present case, which merely involves official's responsibilities by another official name, the review of authorities MacKinnon, A.C.J.O. is instructive: " When courts whether delegation of ministerial intended, considerable weight "administrative necessity", that have been expected that the minister (in the Governor in Council) would administrative powers given to such cases the suitability of the delegate has been a material factor in determining delegation is intended and la~ful: "See Lanham, 'Delegation Ego Pr inciple, , 100 L.Q.R. 587 "There is no rule or presumption against subdelegation": Driedger, Legislation," 38 Can. Bar Rev. The language of the statute must be interpreted in light of what the statute is seeking to achieve. Professor Willi~ pointed out, the non potest delegare" "does not state a rule of law; it is 'at most a rule of construction' applying it to a statute 'there, of course, must be a consideration of the language enactment and of its purposes Willis, "Delegatus Non Potest Delegare", Rev. 257 (l 943), at p. 257. "The first particular power the regulation-making power Council is 'for the proper management and'control of the sea coas t and inland fisher ies" This states the general purpose section and a wide authority is following paragraphs by the use, as noted earlier, of the word "respecting", "embracing any for any purpose coming within the defined subject" matter: Driedger, The Composition 2nd. ed. (1976) at p. 192. points out that the distinction between purposes subjects on the one hand and powers on the other is relevant to the subdelegation: "'For example, if a Minister to make regulations respecting tariffs and tolls he could authorize some other person to fix a tariff or toll., such a regulation would respecting tariffs and tolls. the exercise of one acting in his respecting subdelegation by have considered powers was has been given to is, it could not this case exercise all the him. Further, in whether such and the Alter (1984). for or "Subordinate 1 (1960), at p. 22. As maxim "delegatus and in of the whole and objects'": 21 Can. Bar given under of the Governor in (par a. 34 (a) ) • of the entire conferred in the regulation of Legislation, Driedger (at p. 193) or had powers clearly..be on,e But if the MlnIster s
16 authority is to make regulations prescribing tariffs and tolls then the Minister must himself prescribe, and cannot delegate that authority to another. Expressions commonly used to introduce specific powers are prescribing, fixing, determining, prohibiting, requiring, establishing." Applying the last quotation from Driedger to the present case, it is to be noted that the operative expression in s. 34(m) is "authorizing to vary." s. 4 of the Regulations, says: "A Regional Director General may, by order, vary • " That is, S. 4 does not exceed the scope of the enabling authority in s. 34 of the Act, but specifies how that authorization is to be exercised. It is also to be noted that s. 4 does not specify how the order is to be made. In practice variation orders are in writing signed by the Regional Director-General. There is nothing in the language of s. 4 to prevent the issuance of a verbal order by the Regional Director-General to be commmitted to writing and promulgated by his officials, nor to cause a written order to be issued in his name. A clear distinction exists in the case law between the· delegation of authority by the Minister and the delegation of authority by lesser officials. It is clear the Minister cannot carry out in person the many duties which fall to him as the most responsible official in a departmental chain of command, duties which might appear to require his personal consider ation. Fur ther down the chain of command, as duties become less sweeping in their significance, the requirement that they be carried out by a designated official, perhaps
17 paradoxically, becomes more rigid. In the absence of statutory authority, for example, a fisheries officer could not, acting within his own authority, issue a variation order. (Such statutory authority exists in S. 5 of the Pacific Commercial Salmon Regulations considered in Gulf Trollers Association v. Minister of Fisheries! Oceans (1984) 6 W.W.R. 220 F.C.C.) That is not to say, however, that an official responsible to the Regional Director General, acting in his name and on his behalf, cannot issue a variation order. what harm results when this occurs? That question takes its relevance from S. 12 of the Interpretation Act R.S.C. 1985 (Ch. 1-21): "Every enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." If Parliament had intended the designated functionary under s. 34 (m) to have been one official person, and one only, this could have been readily achieved. The office of Regional Director General might have been defined, and limitations on his authority particularized by statutory authority. Parliament was content, however, to allow the Governor-in-Council to attach the authority to "a person engaged or employed in the administration or enforcement of this Act". The designation of that person was left to the Governor-in-Council. The absence of any description of the role of the Regional Director General in the Regulations ~ suggests a certain lack of formality surrounding the position. There is little on which to base an inference that an official
18 for the time being fulfilling a largely undefined function must do so personally. Such an inference might be drawn more readily if the position were created and limited by statute. engaged in the administration of the Act has a duty to ensure that the act be administered, and it follows that in the absence of clear directives to the contrary that he should make reasonable arrangements for its administration in his name when he is not personally present. Parliament, nor the Governor-in-Council SSe 4 & 5 of the Regulations, could hardly have intended that the carefully constructed administrative machine inoperative, nor that fish stocks should be decimated, while the Regional Director General of the moment was on vacation or home with the Taiwan flu. Both Parliament and the Governor-in-Council must have been cognizant of Sections 24(4) and 24(5) of the Interpretation Ac t R. S _C. 1-21: "(4) Words directing other public officer to do otherwise applying to him by include his successors in their deputy_ "(5) Where a power duty imposed on the holder of an office as such, the power may be exercised and performed by the person for the time with the execution of the powers and duties of the office." The language and the underlying the continuing administration of .. A person be able to in passing should become or empowering any any act or thing, or his name or office, the office and his or is conferred or a the duty shc:ll be being charged intent seem plain: government must continue
19 independently of the physical presence of any individual official. SSe (5) seems broadly drawn to make this clear, even in the absence of any acts of appointment or designation of the "person for the time being charged •• •• " As already noted, s. 4 of the Regulations stops short of saying the variation orders the Regional Director General may issue must be signed by his hand alone. If no other official has been "charged with the execution of the powers and duties of the office" by the Minister q~ the Governor-in-Council, it does not seem unreasonable that the Regional Director General should "charge" a person with the continuing function of his office in his absence. Here it appears he authorized the issuance of variation orders by the Regional Director General over the hand of Neil Bellefontaine signing "for" the Regional Director-General, J.-E.Hache. Mr. Hache remained responsible to the minister who appointed him, who in turn was responsible for his department to the Governor in Council, for orders issued in the exercise of authority granted to The Regional Director-General by the Governor-in-Council under s. 4 of the Regulations. The order in question was in his name and signed by another hand. No one to whom the orders applied was misled nor prejudiced. The actual authority was exercised with apparent authority. The Crown has invoked the maximum "omnia praesumuntur rita esse acta," to which I have referred as the presumption of regularity. It is translated in Black's Law Dictionary as: "a prima facie presumption of the regularity of the acts of public
20 officers exists until the contrary appears." that the contrary has appeared. I do not accept this ground of appeal. Between the drafting foregoing I have been referred by dicisions of the County Court in which similar arguments were considered. MacDonald, C.C.J. came to conclusions similar mine in R. v. McRae (Febru ary 27, 1989 SN. and Haliburton, C.C.J. came to a different conclusion in R. Porter (C.Y. 4353 March 17, 1989 unreported). THE THIRD GROUND The Appellant's position is that the variation orders do not apply to his vessel: they relate to Class C vessels and the Allison and Kristan is a C-2 vessel; he argues there evidence to show that the Class C designation includes Class C-2 vessels. Apparently Class "C" vessels subdivided into Class C-l and C-2 classifications but nothing in the evidence to indicate the regulatory scheme by which this was accomplished, nor its relevance appeal. Exhibit C-l is the fishing license for the Allison and Kristan and shows her to be 64 feet in length, licensed to fish otter trawl as a dragger. It may be noted I do not find and the issuance of the counsel to two recent to 116655 unrepor ted) v. is no have recently been there is to the present that otter trawl,
21 dragged behind the vessel, is mobile gear. The relevant notices of varation orders in Exhibit i5 which were broadcast in accordance with s. 5 of the Regulations include the definition of the class "C" vessels to which the variation orders relate: "Class ·C· vessels are vessels less than 19.8 meters in overall length using mobile gear." As noted above, 19.8 meters is the equivalent of 65 feet. If that were not conclusive, the statement of facts includes an admission that the App~~lant was fishing a Class "C" vessel. I find no merit in this ground of appeal. Accordingly, the appeal against conv iction is d ismi ssed. with respect to the sentence appeal, I find that the fine is fit and proper in the circumstances. The order of forfeiture reflects the value of the fish un,lawful1y taken by the Appellant; the lawful portion of his catch was not involved. In my opinion the trial judge proceeded on the proper principles. I dismiss the appeal against sentence. COURT TWO
IN THE COUNTY COURT OF DISTRICT NUMBER TWO ON APPEAL FROM THE PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN - and ­ DOUGLAS W. BROWN HEARD BEFORE: His Honour Judge P. R. Woolaver PLACE HEARD: Shelburne, Nova Scotia DATE(S) HEARD: March 17, 1988, May 19, 1988, October 13, 1988 CHARGE: That he at or near Shelburne in the County of Shelburne, Nova Scotia, on or about the 19th day of February 1988 did fail to comply with a condition of a licence specified under the authority of Subsection 33(1) of the Atlantic Fishery Regulations, 1985, to wit: did take in excess of the quantity of haddock specified in Variation Order # 1988-027, and Variation Order # 1988-029, contrary to Subsection 33(2) of the said Regulations, and did thereby commit an offence pursuant to Subsection 61(1) of the Fislleries Act, R.S.C. 1970, c. F-14, as amended. COUNSEL: Donald G. Harding, Esq.~ for the Prosecution S. Clifford Hood., Q.C., for the Defence CAS EON A P PEA L
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