R. v. Arenburg, (1988) 87 N.S.R.(2d) 164 (CoCt)

• Case Date: October 26, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 87 N.S.R.(2d) 164 (CoCt)

R. v. Arenburg (1988), 87 N.S.R.(2d) 164 (CoCt);

    222 A.P.R. 164

MLB headnote and full text

Robert George Arenburg (appellant) v. R. (respondent)

(C-LP-3048)

Indexed As: R. v. Arenburg

Nova Scotia County Court

District Number Two

Freeman, C.C.J.

October 26, 1988.

Summary:

The accused fisherman was charged with violating a condition of his licence by taking an excessive amount of a prohibited species. He was convicted. He appealed.

The Nova Scotia County Court allowed the appeal and acquitted the accused on the ground that the Crown failed to prove a variation order establishing the species as prohibited.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - A fisheries officer boarded the accused's boat and asked him to step into the wheelhouse, where without being advised of his right to counsel the accused stated that he was the captain and the amount of fish on board - The Nova Scotia County Court in obiter dictum opined that the accused was not detained when asked to go to the wheelhouse - See paragraph 9.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A fisheries officer boarded the accused's boat and asked him to step into the wheelhouse, where without being advised of his right to counsel the accused stated that he was the captain and the amount of fish on board - The Nova Scotia County Court in obiter dictum opined that the accused was not detained when asked to go to the wheelhouse - Even if he was, the court stated that other competent evidence established that the accused was the captain and the amount of the catch, so admission of the accused's statements would not bring the administration of justice into disrepute - See paragraphs 9 to 10.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bring the administration of justice into disrepute - [See Civil Rights - Topic 8368 above].

Criminal Law - Topic 5339

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - A fisheries officer gave the accused fisherman his Charter rights and told him that he was not required to make a statement, then demanded that he prepare a catch return as required by s. 48 of the Fisheries Act - The fisherman prepared and furnished the return and testified at trial that he felt compelled to do so - The Nova Scotia County Court held that such a statutorily compelled return could be admissible if made freely and voluntarily, but the accused's return was not made freely and voluntarily and was inadmissible - See paragraphs 12 to 19.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement made freely and voluntarily - [See Criminal Law - Topic 5339 above].

Criminal Law - Topic 5370

Evidence and witnesses - Documents and reports - Documents in possession of the accused - Document prepared in response to a demand - The Nova Scotia County Court held that a catch return prepared by the accused after a demand by a fisheries officer was not a document found in the possession of the accused by the officer - See paragraph 15.

Evidence - Topic 2231

Special modes of proof - Judicial notice - Statutes, statutory orders and regulations - The Nova Scotia County Court held that judicial notice may not be taken of orders, which must be proved by the Crown - See paragraph 33.

Evidence - Topic 3827

Documentary evidence - Public documents - Statutes and regulations - Orders - [See Evidence - Topic 2231 above].

Fish and Game - Topic 2173

Fishing offences - Particular offences - Fishing prohibited species - The accused fisherman was charged with taking pollock, a prohibited species, in excess of the quantity permitted - The Nova Scotia County Court acquitted the accused upon failure of the Crown to prove a variation order establishing pollock as a prohibited species - See paragraphs 21 to 35.

Fish and Game - Topic 2194

Fishing offences - Licences - Variation orders - Proof of - [See Fish and Game - Topic 2173 above].

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 614; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(2d) 481; 45 C.R.(3d) 97; 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 15, refd to. [para. 9].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 58 C.R. (3d) 97; 34 C.C.C.(3d) 385, refd to. [para. 9].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R. (3d) 289, refd to. [para. 9].

R. v. Sproule (1988), 84 N.S.R.(2d) 353; 213 A.P.R. 353, appld. [para. 9].

R. v. D'Eon (1988), 83 N.S.R.(2d) 142; 210 A.P.R. 142, appld. [para. 15].

R. v. McCaul (1988), 87 N.S.R. 344; 222 A.P.R. 344, consd. [para. 17].

R. v. Gough (1985), 70 N.S.R.(2d) 192; 166 A.P.R. 192, appld. [para. 17].

R. v. Newell (1988), 87 N.S.R.(2d) 157; 222 A.P.R. 157, appld. [para. 22].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10 [para. 9]; sect. 24(2) [para. 10].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 48 [para. 14].

Fisheries Act, Atlantic Fishery Regulations, sect. 4 [paras. 21, 25]; sect. 33 [para. 22]; sect. 88(2) [para. 27].

Altantic Fishery Regulations - see Fisheries Act.

Counsel:

S. Clifford Hood, Q.C., for the appellant accused;

James P. DiPersio, for the respondent Crown.

This case was heard on October 26, 1988, at Liverpool, Nova Scotia, before Freeman, C.C.J., of the Nova Scotia County Court of District Number Two, who delivered the following judgment in November 1988: