R. v. Agpro Grain Inc. and Bielka, (1996) 142 Sask.R. 37 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 26, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 142 Sask.R. 37 (QB);1996 CanLII 7014 (SK QB);[1996] SJ No 177 (QL);142 Sask R 37

R. v. Agpro Grain Inc. (1996), 142 Sask.R. 37 (QB)

MLB headnote and full text

On Appeal From Conviction, Forfeiture and Sentence Imposed by the Provincial Court Judicial Centre of Outlook Under the Fisheries Act

Her Majesty The Queen (respondent) v. Agpro Grain Inc. and John Bielka (appellants)

(1995 Q.B.C.A. No. 25)

Indexed As: R. v. Agpro Grain Inc. and Bielka

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

March 26, 1996.

Summary:

Agpro Grain Inc. and Bielka were con­victed of unlawfully engaging in fishing by means of a net without holding a licence authorizing such fishing, contrary to s. 26(a) of the Saskatchewan Fishery Regulations. They were fined $10,000 and $500 respec­tively and a forfeiture order was made re­specting the fish they had caught. Agpro and Bielka appealed their convictions and sen­tences.

The Saskatchewan Court of Queen's Bench dismissed the conviction appeal. The court allowed the sentence appeal to the extent of reducing the fine assessed against Agpro to $5,000.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Ad­missibility - Evidence of disposition or propensity of accused - [See Fish and Game - Topic 6141 ].

Fish and Game - Topic 3

General principles - Legislation - Inter­pretation and application - Agpro and Bielka were convicted of fishing with a net without holding a licence authorizing such fishing, contrary to s. 26(a) of the Saskatchewan Fishery Regulations made pursuant to the Federal Fisheries Act - On appeal, Agpro and Bielka argued that the Regulations were penal in nature and should be interpreted strictly so that any ambiguity would be resolved in their favour - The Saskatchewan Court of Queen's Bench held that the legislation and regulations in issue should be interpreted purposively rather than strictly - See paragraphs 12 to 27.

Fish and Game - Topic 3

General principles - Legislation - Inter­pretation and application - Agpro operated a fish farm on Lake Dief­enbaker under an aquaculture licence - Bielka managed the operations - Agpro and Bielka were con­victed of fish­ing with a net, contrary to s. 26(a) of the Saskatchewan Fishery Reg­ulations - Sec­tion 3(2) of the Regulations provided that the Regulations did not apply to "the tak­ing or possession of fish from a water body licensed for the purpose of commer­cial or private aquaculture" - Agpro and Bielka main­tained that none of the Regu­lations applied to Lake Diefen­baker because it was a "water body licensed for the purpose of commercial or private aquaculture" or alternatively that the "water body" was that portion of the lake leased to Agpro - The Saskatchewan Court of Queen's Bench rejected the argu­ment - The "water body" respecting licences issued for aquaculture cage oper­ations was the body of water within the cage per­imeters - See para­graphs 30 to 35.

Fish and Game - Topic 2003

Fishing offences - General - Fishing - Defined - Agpro operated a fish farm on a lake under an aquaculture licence - Bielka managed those operations - Several thousand domestic trout and salmon were lost from the cages into the lake - In an effort to recapture the fish, Agpro let down the corner of the net on one of its cages and activated the feeders to lure fish into the cage - 1500 rainbow trout and 400 whitefish were taken from the lake in that manner - Agpro and Bielka were con­victed of fishing with a net, contrary to s. 26(a) of the Saskatchewan Fishery Regu­lations - They maintained that they were not "fishing" within the meaning of s. 26(a), but rather were only recapturing fish owned by Agpro - The Saskatchewan Court of Queen's Bench rejected the argu­ment - The trial judge did not err in inter­preting the Regulations - See paragraphs 36 to 40.

Fish and Game - Topic 2107

Fishing offences - Defences - Due dili­gence - Agpro operated a fish farm on a lake under an aquaculture licence - Bielka managed those operations - Several thou­sand domestic trout and salmon were lost from the cages into the lake - In an effort to recapture the fish, Agpro let down the corner of the net on one of its cages and activated the feeders to lure fish into the cage - 1500 rainbow trout and 400 whitefish were taken from the lake in that manner - The authorities were not advised of the recapture operation - Agpro and Bielka were convicted of fishing with a net, contrary to s. 26(a) of the Saskatchewan Fishery Regulations - The Saskatchewan Court of Queen's Bench held that the trial judge did not err in finding that Agpro and Bielka failed to establish a defence of due diligence - See paragraphs 41 to 49.

Fish and Game - Topic 2107

Fishing offences - Defences - Due dili­gence - Agpro operated a fish farm on a lake under an aquaculture licence - Bielka managed those operations - Agpro and Bielka were convicted of fishing with a net without holding a licence authorizing such fishing, contrary to s. 26(a) of the Saskatchewan Fishery Regulations - Biel­ka argued that the trial judge's decision was inconsistent where he acquitted another Agpro employee on the basis of due diligence, yet convicted Bielka - The Saskatchewan Court of Queen's Bench held that there was ample evidence to support the trial judge's distinction where the two individuals differed considerably in their experience and knowledge in the industry and their relationship to Agpro - See paragraph 45.

Fish and Game - Topic 2723

Offences - Sentence - Fines and penalties - Fishing with net - Agpro operated a fish farm on a lake under an aquaculture licence - Bielka managed those operations - Several thousand domestic trout and salmon were lost from Agpro's cages into the lake - In an effort to recapture the fish, Agpro let down the corner of the net on one of its cages and activated the feeders to lure fish into the cage - 1500 rainbow trout and 400 whitefish were taken from the lake - The authorities were not advised of the recapture operation - Agpro and Bielka were convicted of fish­ing with a net, contrary to s. 26(a) of the Saskatchewan Fishery Regu­lations - They were fined $10,000 and $500 respectively and a forfeiture order was made respecting the fish they had caught - The Saskatchewan Court of Queen's Bench reduced Agpro's fine to $5,000 - See paragraphs 50 to 55.

Fish and Game - Topic 2907

Offences - Forfeitures - Where owner of seized fish or equipment unascertainable - Section 72(4) of the federal Fisheries Act provided that where ownership of any fish or other thing seized could not be ascer­tained at the time of seizure, the fish are forfeited - Agpro operated a fish farm on a lake under an aquaculture licence - Bielka managed those operations - Several thousand domestic trout and salmon were lost from Agpro's cages into the lake - In an effort to recapture the fish, Agpro let down the corner of the net on one of its cages and activated the feeders to lure fish into the cage - 1500 rainbow trout and 400 whitefish were taken from the lake in that manner - Agpro and Bielka were convicted of fishing with a net - The Saskatchewan Court of Queen's Bench held that s. 72(4) applied and mandatory for­feiture of the fish they had caught fol­lowed - See para­graphs 51 and 52.

Fish and Game - Topic 6141

Offences - Practice - Evidence and proof - General - Bielka appealed his conviction for fishing with a net contrary to s. 26(a) of the Saskatchewan Fishery Regulations - The Saskatchewan Court of Queen's Bench rejected Bielka's contention that evidence of his character or his disposition or pro­pensity to commit crimes was adduced through cross-examination of him by the Crown - Even if some of the evidence could be considered as evidence of bad character, this was not fatal if it was ad­mitted for a purpose other than to show a propensity to commit offences - The trial judge permitted the cross-examination on the ground that it pertained to the credibil­ity of Bielka's assertion of his honest belief that he was legally entitled to do what he did - See paragraphs 46 to 49.

Statutes - Topic 8406

Penal statutes - General principles - Am­biguity resolved in favour of accused - [See first Fish and Game - Topic 3 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 10].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351; 64 C.C.C.(3d) 193, refd to. [para. 10].

R. v. Andres, [1982] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 10].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 181, refd to. [para. 10].

R. v. Morin, [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 10].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134; 13 C.R.(4th) 257, refd to. [para. 11].

R. v. J.N.B., [1991] 1 S.C.R. 66; 117 N.R. 317; 71 Man.R.(2d) 156, refd to. [para. 11].

Marcotte v. Deputy Attorney General of Canada, [1976] 1 S.C.R. 108; 3 N.R. 613, refd to. [para. 12].

R. v. McLaughlin, [1980] 2 S.C.R. 331; 32 N.R. 350; 23 A.R. 530, refd to. [para. 12].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 19].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 20].

R. v. Pierce Fisheries Ltd., [1970] 5 C.C.C. 193 (S.C.C.), refd to. [para. 23].

R. v. Denton (1991), 105 N.S.R.(2d) 357; 284 A.P.R. 357 (C.A.), refd to. [para. 24].

R. v. Saunders (1989), 94 N.S.R.(2d) 224; 247 A.P.R. 224 (C.A.), refd to. [para. 24].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1; 38 C.C.C.(3d) 97; 60 C.R.(3d) 346; 64 C.C.C.(3d) 193, refd to. [para. 25].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; 56 C.C.C.(3d) 161; 77 C.R.(3d) 327, refd to. [para. 25].

R. v. Psovsky, [1988] 4 W.W.R. 471; 68 Sask.R. 295 (Q.B.), refd to. [para. 27].

R. v. Careen (R.J.) (1992), 102 Nfld. & P.E.I.R. 132; 323 A.P.R. 132 (Nfld. T.D.), refd to. [para. 42].

R. v. Jarvis (S.A.) (1993), 120 N.S.R.(2d) 354; 332 A.P.R. 354 (S.C.), refd to. [para. 42].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 48].

R. v. Tanner (S.J.), [1995] 2 S.C.R. 379; 180 N.R. 321; 81 O.A.C. 398, refd to. [para. 48].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 48].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 48].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, F-14, sect. 72(4) [para. 51].

Fisheries Act Regulations (Can.), Saskatchewan Fishery Regulations, P.C. 1979-1681, sect. 3(1), sect. 3(2) [para. 29]; sect. 26(a) [para. 1].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 12 [para. 14].

Interpretation Act, S.S. 1995, c. I-11.2, sect. 10 [para. 15].

Saskatchewan Fishery Regulations - see Fisheries Act Regulations (Can.).

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), pp. 356 [para. 17]; 358, 359 [para. 25].

Counsel:

J. Nugent and R. Watson, for the appel­lants, Agpro Grain Inc. ("Agpro") and John Bielka ("Bielka");

I. Cardinal, for the Crown.

This appeal was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on March 26, 1996.