R. v. Dominaux, (1989) 78 Nfld. & P.E.I.R. 201 (NFPC)

• Judge: Hyslop, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: August 11, 1989
• Jurisdiction: Newfoundland and Labrador
• Citations: (1989), 78 Nfld. & P.E.I.R. 201 (NFPC)

R. v. Dominaux (1989), 78 Nfld. & P.E.I.R. 201 (NFPC);

    244 A.P.R. 201

MLB headnote and full text

Her Majesty the Queen v. Captain Randell Dominaux

Indexed As: R. v. Dominaux

Newfoundland Provincial Court

District of St. John's

Hyslop, P.C.J.

August 11, 1989.

Summary:

The accused was the captain of a fishing vessel and was charged under s. 48 of the Fisheries Act with providing a false return regarding the catch. Two fishery officers had boarded the ship while it was at sea and requested a true return of catch. The accused indicated a nearby logbook. When the officers discovered that the log understated the catch by 34%, the accused was charged with furnishing a false return. The accused submitted that the request was invalid because the officer failed to put the demand in writing. Also, the accused claimed that the officers' use of the logbook constituted an unreasonable search and seizure.

The Newfoundland Provincial Court held that the accused was guilty as charged.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - Ship's logbook - The accused was charged under section 48 of the Fisheries Act with failure to provide a true return of catch - In response to a request for a true return of fishery officers, the accused indicated a nearby logbook - The figures in the log understated the catch by 34% - The accused claimed that the use of the logbook by the officers constituted an unreasonable search and seizure contrary to section 8 of the Charter - The Newfoundland Provincial Court held that the accused impliedly furnished the logbook as a means of complying with the request for a true return - See paragraph 16.

Civil Rights - Topic 3604

Detention - What constitutes - Two fishing officers boarded the accused's vessel and requested a true return of catch - The accused indicated a nearby logbook - The officers charged the accused with providing a false return when it was determined that the logbook understated the catch by 34% - The accused submitted that he was detained by the officer and that his Charter right to counsel was infringed as he was not informed of the right before the request for the return was made - The Newfoundland Provincial Court held that the accused was not detained - See paragraphs 10 and 12.

Fish and Game - Topic 2167

Fishing offences - Particular offences - Failure to furnish return of catch - Return - What constitutes - The accused was charged under section 48 of the Fisheries Act with failure to provide a true return respecting the fish catch - Two officers boarded the accused's vessel and asked for a return of catch - The accused pointed to a logbook - The accused submitted that he could not have furnished a false return because he never furnished a return in writing - The Newfoundland Provincial Court held that a return could be made in a manner other than in writing - See paragraphs 14 and 15.

Fish and Game - Topic 2167

Fishing offences - Particular offences - Failure to furnish return of catch - The accused was charged under section 48 of the Fisheries Act with failing to furnish a true return of catch - The return understated the catch by 34% and represented a value of $38,536.00 - The accused claimed that he merely used the figures supplied to him by the crew and that he did not bother to check the cargo - The Newfoundland Provincial Court found the accused guilty as charged.

Fish and Game - Topic 2167

Fishing offences - Particular offences - Failure to furnish return of catch - Demand for a return - The accused was charged under section 48 of the Fisheries Act with failure to provide a true return of catch - Two fishery officers boarded the accused's vessel and requested a return concerning the catch - The accused claimed that he was never given a proper request for a true return because the request was not in writing - The Newfoundland Provincial Court held that the verbal request was clear and unambiguous and was a proper request, notwithstanding the fact that it was not reduced to writing - See paragraphs 6 to 9.

Fish and Game - Topic 5645

Enforcement - Searches - Warrants - When required - The accused was charged under section 48 of the Fisheries Act with failure to furnish a true return of catch - The accused's logbook understated the catch by 34% - The accused claimed that the seizure of the logbook by the fishery officers constituted an unreasonable search and seizure that was contrary to section 8 of the Canadian Charter of Rights and Freedoms - The Newfoundland Provincial Court observed that there was no reasonable expectation of privacy in regard to log entries - See paragraph 16.

Cases Noticed:

R. v. Flegel (1972), 7 C.C.C.(2d) 55 (Sask. C.A.), consd. [para. 8].

R. v. Therans, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; [1985] 4 W.W.R. 236; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; 32 M.V.R. 153, appld. [para. 10].

R. v. Keats (1988), 67 Nfld. & P.E.I.R. 116; 206 A.P.R. 116 (C.A.), refd to. [para. 11].

R. v. Sproule (1987), 81 N.S.R.(2d) 308; 203 A.P.R. 308 (N.S.C.C.), refd to. [para. 11].

R. v. Harrison (1982), 1 C.C.C.(3d) 96 (Ont. C.A.), refd to. [para. 14].

R. v. Milton et al. and R. (1986), 32 C.C.C.(3d) 159 (B.C.C.A.), refd to. [para. 16].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 16]; sect. 10(b) [para. 10]; sect. 24(2) [para. 16].

Counsel:

C. Scevior, for the defendant;

G. MacNab, for the Crown.

This matter was heard by Hyslop, P.C.J., of the Newfoundland Provincial Court, District of St. John's, who delivered the following judgment on August 11, 1989: