R. v. Dorgan (M.G.) et al., (2008) 280 Nfld. & P.E.I.R. 141 (PEITD)

• Judge: Mitchell, J.
• Case Date: September 11, 2008
• Jurisdiction: Prince Edward Island
• Citations: (2008), 280 Nfld. & P.E.I.R. 141 (PEITD);2008 PESCTD 37

R. v. Dorgan (M.G.) (2008), 280 Nfld. & P.E.I.R. 141 (PEITD);

    859 A.P.R. 141

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. OC.007

Michael Gerard Dorgan (appellant) v. Her Majesty The Queen (respondent)

(S1-GC-598)

James Wilson Gavin (appellant) v. Her Majesty The Queen (respondent)

(S1-GC-599; 2008 PESCTD 37)

Indexed As: R. v. Dorgan (M.G.) et al.

Prince Edward Island Supreme Court

Trial Division

Mitchell, J.

October 1, 2008.

Summary:

The accused fishermen were convicted of fishing for lobster during a closed time (Atlantic Fishery Regulations, s. 57(1)). Lobster fishing was permitted in one zone (LFA 25), but not in the contiguous zone (LFA 24). The accused appealed, essentially challenging the sufficiency of the evidence that placed their traps inside LFA 24.

The Prince Edward Island Supreme Court, Trial Division, dismissed the appeals.

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See Fish and Game - Topic 2107 ].

Fish and Game - Topic 2107

Fishing offences - Defences - Due diligence - Lobster fishing was open in one zone (LFA 25), but closed in the contiguous zone (LFA 24) - Fisheries officials, using their global positioning system (GPS) found traps belonging to two fishermen inside LFA 24 - The fishermen were convicted of fishing for lobster during a closed time - The Crown's expert testified as to the steps taken to ensure the GPS device was working and to the accuracy of the GPS readings - The fishermen's expert testified as to the margin of error - Allowing for that margin of error, the traps were still well inside LFA 24 - The fishermen appealed their convictions, essentially challenging the sufficiency of the Crown's evidence - The Prince Edward Island Supreme Court, Trial Division, dismissed the appeals - The court rejected the fishermen's submission that there was insufficient evidence to assess the accuracy of the GPS - The court noted appellate authority that GPS systems were so widely used and recognized that it was open to a trial judge to admit GPS evidence without the necessity of calling expert evidence - In any event, there was sufficient evidence at trial to permit the trial judge to reasonably conclude that the GPS readings were accurate and that the fishermen's traps were in LFA 24 during a closed period - Likewise, the evidence reasonably supported the trial judge's finding that the fishermen failed to establish due diligence.

Fish and Game - Topic 2176

Fishing offences - Particular offences - Fishing or angling in closed season (incl. placing fishing equipment in water) - [See Fish and Game - Topic 2107 ].

Cases Noticed:

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 107 C.C.C.(3d) 97 (C.A.), refd to. [para. 13].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 14].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 14].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 16].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 18].

R. v. Zundel (1987), 18 O.A.C. 161; 31 C.C.C.(3d) 97 (C.A.), refd to. [para. 22].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 123 C.C.C.(3d) 1 (C.A.), refd to. [para. 22].

R. v. Kim, 2007 ONCJ 488, refd to. [para. 22].

R. v. Grainger (1958), 120 C.C.C. 321 (Ont. C.A.), refd to. [para. 22].

Wilgosh v. Good Spirit Acres Ltd. (2007), 293 Sask.R. 175; 397 W.A.C. 175; 2007 CarswellSask 168 (C.A.), refd to. [para. 23].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 39].

R. v. Sam (W.D.) [1995] B.C.T.C. Uned. C93; , 1995 CarswellBC 97 (S.C.), refd to. [para. 45].

Counsel:

Peter C. Ghiz, for the appellants;

Ronda M. Vanderhoek, for the respondent.

These appeals were heard on September 11, 2008, at Charlottetown, P.E.I., before Mitchell, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on October 1, 2008.