R. v. Gough, (1985) 70 N.S.R.(2d) 192 (CA)

• Judge: Macdonald, Pace and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 29, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 70 N.S.R.(2d) 192 (CA)

R. v. Gough (1985), 70 N.S.R.(2d) 192 (CA);

    166 A.P.R. 192

MLB headnote and full text

R. v. Gough

S.C.C. No. 01216

Indexed As: R. v. Gough

Nova Scotia Supreme Court

Appeal Division

Macdonald, Pace and Matthews, JJ.A.

October 29, 1985.

Summary:

The accused captain of a fishing vessel was charged with failing to furnish a true return of his catch. When asked to make a return, he reported "estimate 25 ton" - The catch was actually 29.75 tons. He was acquitted by the Province Magistrate's Court on the grounds that the return was inadmissible in the absence of a voir dire to determine its admissibility and that the accused should have been advised of his right to counsel upon being required to make the return. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal, set aside the acquittal and remitted the matter to the trial judge for disposition. The court held that the return was admissible without a voir dire, because it was not to be introduced to incriminate the accused, but was the actus reus of the offence charged. Further, there was no right to counsel in the absence of arrest or detention.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - A captain of a fishing vessel was requested to make a true return of his catch as required by s. 48 of the Fisheries Act - The Nova Scotia Court of Appeal held that there was no right to counsel upon the request, because there was no arrest or detention within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms - See paragraph 13.

Criminal Law - Topic 5339

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - Section 48 of the Fisheries Act required the captain of a fishing vessel on demand to furnish a true return of his catch - The Nova Scotia Court of Appeal held that on a charge of making a false return the return was admissible without a voir dire, because the return was not offered to incriminate him with respect to an offence, but rather the statement in the return was the actus reus of the offence and the confession rule was inapplicable - See paragraphs 3 to 12.

Fish and Game - Topic 2167

Fishing offences - Particular offences - Failure to furnish return of catch - Section 48 of the Fisheries Act required the captain of a fishing vessel to furnish on demand a true return of the quantity of his catch - A captain stated in a return that his catch was "estimate 25 tons", when it actually was 29.75 tons - The Nova Scotia Court of Appeal in quashing an acquittal and remitting the matter for disposition stated that the captain was required to make a personal return of the amount of his catch and the return itself was admissible in evidence without a voir dire, where the statement in the return was the actus reus of the offence.

Cases Noticed:

Walker v. R., [1939] S.C.R. 214; 71 C.C.C. 305, consd. [para. 7].

Marshall v. R., [1961] S.C.R. 123; 129 C.C.C. 232, consd. [para. 7].

R. v. Bossman (1984), 15 C.C.C.(2d) 251 (Alta. C.A.), consd. [para. 7].

R. v. Fex (1973), 12 C.C.C.(2d) 239 (Ont. H.C.), affd. 14 C.C.C.(2d) 188 (Ont. C.A.), refd to. [para. 8].

R. v. Stapleton (1982), 66 C.C.C.(2d) 231 (Ont. C.A.), appld. [para. 11].

R. v. Gallaher (1977), 37 C.C.C.(2d) 191, appld. [para. 11].

R. v. Zerebeski (1982), 66 C.C.C.(2d) 284, appld. [para. 11].

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

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 10 [para. 13].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 48 [para. 4].

Counsel:

Charles E. Haliburton, Q.C., for the appellant Crown;

S. Clifford Hood, for the respondent accused.

This case was heard on October 11, 1985, at Halifax, Nova Scotia, before Macdonald, Pace and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On October 29, 1985, Macdonald, J.A., delivered the following judgment for the Appeal Division: