.. .. Cite as: R. v. Denton, 1990 NSCO 1 C.D. No. 2828 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: HER MAJESTY THE QUEEN APPELLANT - and CHESTER STACEY DENTON RESPONDENT HEARD: At Digby, Nova Scotia, on the 27th day of June, A.D. 1990 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 63(3) of the Atlantic Fishery Regulations DECISION: The 27th day of September, A.D. 1990 COUNSEL: Michael J. Mackin, Esq., for the Appellant S. Clifford Hood, Q.C., Esq., for the Respondent DEC I S ION o N A P PEA L
HALIBURTON, J.C.C.
This appeal is against the acquittal of Chester Stacey
Denton in a prosecution for an offence, the essence of which is that on or about the 27th day unlawfully fish for scallops miles of the shores of ... Digby County. Bis Honour John R. Nichols, Court, heard the evidence and acquitted the Accused on the 16th day of November, 1989. Shortly after that date, 4th, the Appeal Division of the heard an appeal in the case S.C.C. #02129 (Dec. 21, 1989, MacDonald, J.A., speaking for the Court in that case, deals with issues central to the issues raised herein. relating to the offence alleged to have been committed by Denton in this case and the decision of the Trial Judge herein must now be read in the context of the decision rendered by the Appeal Division in the Saunders case. this Court must now consider is whether the activities ot this Accused inside the eight mile restricted zone definition of "fishing" as it must the Saunders case. THE TRIAL COURT In connection with the issues raised on this appeal, the relevant findings of the Trial Court are set out al pages of July 1989 (he) did within eight nautical a Judge of the Provincial on December Supreme Court of Nova Scotia of R. v. Frederick W. Saunders, unreported). The judgment of The circumstances The essence of the matter which come wi thin the now be applied subsequent to
- 2 101 and 102 of the transcript. Judge Nichols said: He (Captain Denton) indicates quite fully from his four loran instruments that he .. had radars, one (of) (sic) which felt he was .. outside, all his fishing was done outside the eight mile line, skirting along line as shown by the (50) (sic) fathom line that he was negotiating as shown on the chart of the area). He indicates at the time posi tion not only on his there but also on his radars, as just on the edge of the eight mile line. On cross examination he was asked what, go on deck or fish and then check always in the seat checking .... On the totality of the variation and the closeness of the line, I that the defence of due diligence is available to Mr. Denton. It is certainly indicated from the equipment he had on board and his observations made of the radar, the evidence given by the pilot as well, puts him in so close to the line that the benefit of the doubt that when he was the Fishery Vessel, the Fishery Helicopter, that he was in the process of hauling in his drag, inside, slightly inside the line, drags being landed on board. I am not satisfied that the Crown has established that he did unlawfully fish for scallops within the eight nautical miles of the shores of Annapolis and I find him not guilty of the offence as charged. The Appellant/Crown raises appeal: 1. The evidence at trial does not sustain a defence of due diligience on the suggested by the Learned Trial Judge. In the course of his decision, on board and the two was operational, that he the edge of the red line of C-4 (marine that he had plotted his loran and had the reading had the position marked was he, did he and he said he was evidence, considering the am satisfied from his use I am giving him observed by having drifted just prior to the Basin (sic) (my emphasis) the following issues on part of the Respondent as
- 3 2. The Respondent was in the act of fishing was found to be inside the closed area. THE EVIDENCE In general terms, the evidence was to the effect that the Holly Ann II of which the Accused the day in question, engaged in fishing for scallops. apparently accumulated some quanti ty of scallops in (shell stock), the vessel drifted for period the crew was engaged in shucking scallops that time abandoned the "fishing process". the vessel drifted to within approximately 5~ miles of the shore where it was observed by the Fisheries Patrol vessel, at approximately 5:30 in the afternoon. effect that the Fisheries Patrol vessel, Cumella, manoeuvred to a point a mile and a half or two miles off the coast and watched the Holly Ann II by means of its radar as it proceeded offshore. At the request of the Cumella, engaged in Fisheries surveillance identified the Holly Ann II at a position 7.3 miles off the approximately 8:25 p.m. The observed the scallop drags being brought aboard the vessel and were able to observe that the drags contained what appeared to be scallops. The Accused, Captain testified at page 75 that he had been laying too, when he was the captain was, on Having the shell some time during which and had for During this period, Cumella, The evidence was to the a helicopter which was also coast of Digby County at occupants of the helicopter Denton, gave evidence. He shucking for
- 4 about two hours when they first made visual contact wi th the patrol boat. While shucking, his vessel had drifted to a point some five miles off land. So I steamed off the land .. to my knowledge, I was eight miles off when I set out ... I set my drags out. He went on to say that he made a 15 minute tow and (at page 76): When the helicopter came my drags were almost to the boat. I had 25 fathom of cable left out. QUESTION: And how long had you been hauling back?
ANSWER: Oh, three, four or five minutes.
QUESTION: Now, to your knowledge, where were you right
then?
ANSWER: Right when the helicopter come?
ANSHER: Yes.
ANSHER: I was a bit inside the line.
And later, page 77: QUESTION: So what you're saying is that on your radar screen, to the best of your recollection, your eight mile ring would be ... was it touching that point or was
it actually a little inside?
ANSWER: It was actually a little bit inside of it.
QUESTION: Okay, that is when the helicopter came over
you, and you had 25 fathoms of cable out?
ANSWER: Yeah.
QUESTION: How much ... what was the depth of water
there?
ANSWER: Oh, 53-54 fathom.
QUESTION: Now during all the time that you were towing
with your gear on the bottom, where were you according
to what your radar... (my emphasis)
ANSWER: Eight mile, right on the eight mile line.
QUESTION: You're sure of that?
- 5 ANSWER: Yes sir, I am. And at page 79: And you said you worked on an edge. That edge is, in
fact, ah, a chart fathom line and what is it?
ANSvvER: It's a 50 fathom line.
QUESTION: That's where you ... what was the depth of
water that you were fishing on, on the edge? ANSWER: On the edge, 52 to 53 fathom. And at page 80: And basically from you're saying, it seems that you set outside the line and then the tide which br ings you
around ...
ANSWER: Yeah.
QUESTION: ... follow that edge and then as you come up
towards the line and haul up?
ANSWER: Yeah.
QUESTION: And then as you're hauling up, you continue
to set in, set in towards the land?
ANSWER: And also we keep the boat in gear too until we
get our 50 fathom in and then we take her out of gear.
That will set you in even farther.
And in cross-examination, Captain Denton was asked about how often he checked his navigation along this eight mile line or 50 fathom line as the case may be. (Page 84): ANSWER: Oh, I'm always sitting in the seat, looking. QUESTION: ... So you weren't out on deck or anything of that sort? ANSWER: Oh, I'd go on deck for a couple of minutes and help the guys and shuck a little bit.
- 6 And at page 86, with respect to his position and the care he was taking to avoid fishing inside the eight mile line: QUESTION: And you well knew by fishing that close to the line, it was easy for you to actually come over the
line ...
ANSWER: Oh, when you ...
QUESTION: ... within the closed area, correct?
ANSWER: Yes, when you was hauling back, yes but then
your gear is not on bottom. It's coming up in the water. QUESTION: Now, you've stated that, that you knew that you were inside the line and you knew that because you looked at the radar and that was at a point that you were doing what? ANSWER: We was haul ing back. We only had about 25 fathoms left.
QUESTION: And you're suggesting that you were not
fishing at that point in time?
ANSWER: No, we weren't. Our gear was not on bottom.
QUESTION: Even though your gear was still in the water
though, correct?
ANSWER: That's right but ...
QUESTION: The drags weren't aboard as yet?
ANSWER: No.
FINDINGS ISSUE NO. 1 A finding of due diligence is a finding of fact and ought not to be disturbed on appeal unless the facts cannot reasonably be supported by the evidence. From the decision of Dickson, J., as he then was, in R. v. City of Sault Ste. Marie,
- 7 [1978] 2 S.C.R. 1299, it is diligence will be available only if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. The evidence of Captain Denton and the evidence which was apparently accepted by the fishing on the eight mile line. being reasonably careful not to come inside that line until he had commenced the operation of hauling back his gear. course of this process, his practice was shore to avoid the possibility of the towing warp propeller, and at some later stage in the process, propeller and permitting the vessel to drift while stages of recovering the drags proceeded. it was at this stage after turning towards shore and after the drags were off the bottom but before they were vessel that the patrol helicopter determined his position. By his own evidence, he inside the line. The crew of the patrol helicopter fixed the position at seven and three-tenths miles from shore. In these circumstances, cannot apply. If the process of recovering the scallop drags is "fishing", the Accused did not have of facts, that is, his location, innocent. Accepting his evidence Captain Denton's mistake was clear that the defence of due Trial Judge was that he was His evidence was that he was In the to turn towards the fouling his stopping the the final His evidence was that on board the hovered over them and was slightly the defence of due diligence a mistaken belief in a set which could render him as the Trial Judge did, in relying on a definition of
- 8 "fishing" which is contrary Accordingly, his error was one Likewise, there is no suggestion that steps or any steps to avoid having his vessel eight mile restricted area while recovering his drags. To the extent, then, that the Trial Judge may have found the Accused not exercise of due diligence, I find that he was in error. ISSUE No.2 It is argued on behalf of the Respondent that not "fishing" at the time he relevant time. The Accused concedes that his fishing vessel was inside the eight mile line but actually penetrated the eight mile line, process of recovering his drags. transcript decribing the length of the towing warp used by the Accused on the day in question. actually fishing for scallops roughly coincided with the eight mile restricted zone. clear in the evidence is the Respondent's position that at the time of observation, whi le sti 11 nearly 50 fathoms, his scallop drags were only 25 fathoms down. The significance of that point scallops have some limited ability to limited mobility, scallops are a shellfish, or indeed a mollusc, and habitually rest on the ocean bottom. to the result in Saunders. of law and not of fact. he took all reasonable come within the he was in the process of guilty on the basis of the he was was observed, nor at any other that before his vessel had he had commenced the There is no evidence in the The evidence is that he was along the 50 fathom line which What is in water having a depth of is, of course, that while swim, or at least some To be effective in the
- 9 process of catching them, it is general knowledge that the drags are towed over the bottom and not in mid water. may be as a matter of law that Captain Denton was "fishing" with only 25 fathoms of his towing warp extended, the prospect of his catching any scallops at that particular phase of the process would have to be remote. In these circumstances, Nichols was correct in accepting what must best be described as the opinion of the Accused that "all his outside the eight mile line ..• ". Section 2 of the Fisheries Act R.S.C. defines fishing as follows: "Fishing" means fishing for, catching or attempting to catch fish by any method. On my reading of Saunders, have determined what will be least in the Courts of this province. had embarked on a fishing trip seeking to catch haddock and had, instead, caught pollock. It was, offence to catch pollock but, determined the only reasonable course for him to follow land them. While with respect to the Saunders case it might argued that a Court was dealing only with a question of "fishing for" as opposed to articulating a definition of "fishing", Justice Macdonald specifically definition enunciated by the Supreme Court of Canada in The Ship Thus, while it can it be said that Judge 'f ishing' was done 1985, c. F-14, Macdonald, J.A. appears to the definition of "fishing" at In that case, the Accused at that time and place, an having caught them, the Accused was to be Mr. approved and reiterated the
- 10 "Frederick Gerring J .-L • " v . Her S.C.R. 271. In Gerring, an American having entrapped a catch of herring drifted within Canada's three mile limit before the trapped fish had been removed from the seine. found that the seiner had been "fishing" wi thin the three mile limit. Mr. Justice Sedgevlick is quoted Saunders decision as follows: " ... The question is whether thi s when, for two hours or (sic), or scooping out, by means of a dip-net, from the area of water surrounded by the seine, the one hundred and thirty barrels (more they finally secured. The act of fishing is a pursuit consisting, not of a single but of many acts according to the nature of the fishing. act alone either of surrounding the fish by the net, or by taking them out of the water and obtaining manual custody of them. It is a continuous process beginning from the time when the preliminary preparations being made for the taking of the fish down to the moment when actual and certain possession. idea of what 'fishing', acceptation of the word, means, the meaning which we must statutes and treaty." Counsel for the Respondent that "reason" and a "knowledge distinguish this case from the Gerring case on the basis of the facts. Certainly the species of fish taken are very different and the activities relating to recovering those fish are very different. I find, however, that I Majesty The Queen, 27 fishing vessel, a seiner, In international waters, In those circumstances, it was from that case in the vessel was 'f ishing I , more, her crew were bal ing or less) of mackerel which It is not the isolated are and extending they are finally reduced to That, at least, is the according to the ordinary and that, I think, is give to the word in the (my emphasis) has urged upon the Court of fishing practices" would am bound by the decision in
- 11 Saunders, and that had Saunders been decided before the Accused herein went to trial, Judge Nichols could not the Accused was not "fishing" retrieving his drags with their catch of scallops, he might have determined as a scallops actually entrapped in the drags had been outside the line. Applying the decision conclude that Judge Nichols made respect to whether or not the Accused was "fishing" on the basis of his own testimony and, accordingly, decision of the Trial Court and enter a conviction against the Accused. Counsel will, of course, appropriate sentence. I would add only this definition of "fishing" enunciated ln Gerring may unduly pedantic, it does have obvious practical merit point of view of enforcement. When red-handed as it were, with its scallop drags or its otter trawl gear in the water, it would surely enforcement officers or the Courts to determine with any degree of accuracy or equity whether the fish without a defined area. have found that whi le he was in the process of even though matter of fact that all the so entrapped in Saunders and Gerring, I a reversible error in law with I would reverse the be heard with respect to an afterthought. While the appear to be from the a fishing vessel is caught, be impossible for either were caught wi thin or
- 12 DATED at Digby, Nova Scotia, this 27th day of September, A.D. 1990. ~: ~=.--=-=-----JUDGE OF THE COUNTY COURT OF DISTRICT NUMBER THREE TO: Clerk of the County Court P.O. Box 668
Digby, Nova Scotia
BOV lAO
Mr. Michael J. Mackin
Barrister & Solicitor
P.O. Box 577
Digby, Nova Scotia
BOV lAO
Solicitor for the Appellant
Mr. S. Clifford Hood, Q.C.
Barrister & Solicitor
P.O. Drawer 670
Yarmouth, Nova Scotia
B5A 4B6
Solicitor for the Respondent
CASES AND STATUTES CITED: R. v. Frederick W. Saunders S.C.C. #02129, December 21, 1989, unreported R. v. City of Sault Ste, Marie [1978] 2 S.C.R. 1299 Fisheries Act R.S.C. 1985, C. F-14 The Ship "Frederick Gerring Jr." v. Her Majesty The Queen, [1987] 27 S.C.R. 271
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.