R. v. Fester (J.J.), (1994) 161 A.R. 351 (QB)

• Judge: Dea, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 07, 1994
• Citations: (1994), 161 A.R. 351 (QB)

R. v. Fester (J.J.) (1994), 161 A.R. 351 (QB)

MLB headnote and full text

Her Majesty The Queen (respondent) v. John James Fester (appellant)

(Action No. 94040003S30101)

Indexed As: R. v. Fester (J.J.)

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Dea, J.

November 7, 1994.

Summary:

Fester was sentenced to a $1,000 fine for snagging fish contrary to s. 47 of the Alberta Fishery Regulations made under the Fish­eries Act (Can.). Fester appealed. He alleged that the discretion provided to fisheries officers under the Act and regulations con­stituted a deprivation of his liberty under s. 7 of the Charter. He also argued that the sentence was too high.

The Alberta Court of Queen's Bench held that Fester's Charter rights had not been violated. The court set the matter over for a new hearing on the fitness of the fine.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 726 ].

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - Fester appealed his fine of $1,000 for snagging fish contrary to s. 47 of the Alberta Fishery Regulations (made under the Fisheries Act (Can.)) - Fester alleged, inter alia, that the discretion provided to fisheries officers under the Act and regu­lations constituted a deprivation of his liberty under s. 7 of the Charter - The Alberta Court of Queen's Bench dismissed Fester's claim - The court stated that broad discretion given to "peace officers" does not violate s. 7 of the Charter provided that the discretion is properly exercised and not arbitrary - See paragraphs 16 to 22.

Fish and Game - Topic 2724

Offences - Sentence - Fines and penalties - Jigging fish (incl. snagging fish) - Fes­ter appealed his fine of $1,000 for snag­ging fish contrary to s. 47 of the Alberta Fishery Regulations (made under the Fish­eries Act (Can.)) - Fester alleged that the discretion provided to fisheries officers under the Act and regulations constituted a deprivation of his liberty under s. 7 of the Charter and that the sentence was too high - The Alberta Court of Queen's Bench held that Fester's Charter rights had not been violated and set the matter over for a new hearing on the fitness of the fine.

Fish and Game - Topic 2981

Offences - Procedure - General - The Alberta Court of Queen's Bench reviewed the different ways a fisheries officer may proceed when a first time offender was charged with snagging fish contrary to s. 47 of the Alberta Fishery Act Regulations (made under the Fisheries Act (Can.)) - The court stated that it was appropriate for the officer to proceed by way of summary conviction and as such the penalties were as provided in s. 78 of the Act - For a first time offender charged summarily, the penalty was a fine not exceeding $100,000 - See paragraphs 12 to 15.

Fish and Game - Topic 2981

Offences - Procedure - General - The Alberta Court of Queen's Bench stated that the Fisheries Act (Can.) authorized at least three ways to institute proceedings when a breach of the Act or the corresponding regulations occurred - Particularly, s. 78 provides that offences under the Act or the regulations may be prosecuted by way of summary conviction or indictment - Sec­tion 79.7 provides for a ticketing procedure - The court recognized that the Act and regulations gave broad discretion to "peace officers" when determining how to pro­ceed, however stated such discretion did not infringe an offender's liberty under s. 7 of the Charter, provided that the discretion was properly exercised and not arbitrary.

Cases Noticed:

Richard, Re (1907), 38 S.C.R. 394, refd to. [para. 10].

Grande Prairie (City) v. Wytrykush (1987), 78 A.R. 175; 29 C.R.R. 182 (Prov. Ct.), refd to. [para. 17].

R. v. Blackplume (C.) (1990), 113 A.R. 199; 56 C.C.C.(3d) 563; 78 Alta. L.R.(2d) 16 (Q.B.), refd to. [para. 17].

R. v. Gray (1988), 54 Man.R.(2d) 240 (C.A.), refd to. [para. 17].

R. v. Joe (J.A.) (1993), 92 Man.R.(2d) 8; 61 W.A.C. 8; 87 C.C.C.(3d) 234 (C.A.), refd to. [para. 17].

R. v. Burt, [1988] 1 W.W.R. 385; 60 Sask.R. 100 (C.A.), refd to. [para. 17].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57, refd to. [para. 19].

R. v. Blackplume (C.) (1993), 135 A.R. 265; 33 W.A.C. 265; 79 C.C.C.(3d) 175; 7 Alta. L.R.(3d) 285 (C.A.), refd to. [para. 20].

R. v. Fleming (F.) (1992), 80 Man.R.(2d) 18; 72 C.C.C.(3d) 133 (Q.B.), refd to. [para. 21].

Statutes Noticed:

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

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 16]; sect. 24 [para. 20].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 78, sect. 79.7(1), sect. 79.7(2) [para. 6].

Fisheries Act Regulations (Can.), Alberta Fishery Regulations, S.O.R. 87-153, sect. 47 [para. 5]; sect. 68, sect. 69 [para. 6]; Schedule XII, item 26 [para. 7].

Liquor Control Act, R.S.A. 1980, c. L-17, sect. 77(1)(d), sect. 97(2) [para. 20].

Counsel:

R.B. Smith, for the Crown;

M.B. Golden, for the defence.

This case was heard before Dea, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following judgment on November 7, 1994.