R. v. Ivy Fisheries Ltd. et al., (2009) 279 N.S.R.(2d) 85 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 30, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 279 N.S.R.(2d) 85 (SC);2009 NSSC 95

R. v. Ivy Fisheries Ltd. (2009), 279 N.S.R.(2d) 85 (SC);

    887 A.P.R. 85

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. AP.001

Clark Andrew Henneberry, Wesley L. Henneberry, Marcel Steven Henneberry, Ivy Fisheries Limited, Paul Raymond Parnell, Andrew William Henneberry, Gregory Burton Smith and James Phillip Ryan (appellants) v. Her Majesty the Queen, in Right of Canada (respondent)

(SBW 268851; 2009 NSSC 95)

Indexed As: R. v. Ivy Fisheries Ltd. et al.

Nova Scotia Supreme Court

Stewart, J.

March 30, 2009.

Summary:

From September 16 to December 16, 2000, Ivy Fisheries Ltd. used two company licences and three individual licences to fish for Bluefin Tuna. Of the 176 tuna that were recorded as being caught under those licences during that time period, 135 were found to have been caught in contravention of the Fisheries Act and Regulations. Ivy Fisheries Ltd. and seven individuals were convicted of a multitude of charges under the Fisheries Act and Regulations: failing to immediately enter confirmation numbers; failing to return incidental catch; the use of a tuna license concurrently with a shark license; failing to hail immediately; permitting an unauthorized person to fish a licence; fishing while a temporary replacement permit was in place; fishing without authorization; fishing without a fisher's registration card; and selling illegally caught fish.

The Nova Scotia Provincial Court, in a decision reported at (2006), 245 N.S.R.(2d) 381; 777 A.P.R. 381, suspended a lease licence for one year and imposed fines on each of the accused under s. 78 of the Act. Ivy Fisheries Ltd. was found to have sold the 135 tuna for a total of $1,196,412.23. $643,234.82 of the sales proceeds, being the value of 70 of the tuna which related to the most serious offences, were apportioned among the accused through the imposition of "additional fines" under s. 79 of the Act. The accused appealed both conviction and sentence.

The Nova Scotia Supreme Court dismissed the appeal.

Editor's Note: For other decisions in this matter see (2006), 245 N.S.R.(2d) 349; 777 A.P.R. 349 and (2004), 220 N.S.R.(2d) 192; 694 A.P.R. 192.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Eight accused appealed from their convictions for a multitude of charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in determining that their right to trial within a reasonable time (Charter, s. 11(b)) had not been infringed - The accused had brought two applications pursuant to s. 11(b) - The trial judge dismissed the first application, attributing to the Crown a delay of seven months and three weeks of the total 24 month period from the laying of the first information in January 2002 to the decision on January 8, 2004 - The trial judge dismissed the second application, attributing to the Crown 25 days of delay out of a total period of 24 months and nine days from the January 8, 2004, decision to the hearing of the second application - The trial judge found that the accused implicitly waived 210 days by agreeing to dates for the submission of written closing arguments and asking for a date to conduct oral arguments - She noted that earlier dates were available and that the agreed dates were chosen at least in part to accommodate the schedule of the accused's counsel - After adding the 25 days of Crown delay under the second application to the seven months and three weeks of delay under the first application, and weighing that delay against what she concluded to be minimal prejudice suffered by the accused, the trial judge concluded that the total delay attributed to the Crown was not unreasonable - The Nova Scotia Supreme Court held that the trial judge did not err - The delays were properly characterized, did not constitute unreasonable delay, and did not breach the accused's s. 11(b) rights - See paragraphs 17 to 38.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Eight accused appealed from their convictions for a multitude of charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in determining that their right to trial within a reasonable time (Charter, s. 11(b)) had not been infringed - The accused had brought two applications pursuant to s. 11(b) which were dismissed by the trial judge - The accused raised the sufficiency of the trial judge's reasons relating to prejudice and questioned whether she fully considered this matter - The Nova Scotia Supreme Court stated that "The trial judge was alive to the issue of prejudice even though her findings of less than eight months institutional and Crown delay on the first application, and less than nine months cumulatively on the last, meant that the delay was not unreasonable, as it was below the upper acceptable range of the Morin guidelines and thus the need for a prejudice analysis was questionable" - The court further stated that "The trial judge's analysis pertaining to prejudice provides a complete spectrum for determining the reasonableness of the delay. On both occasions, she properly determined the appellants' liberty interests were not affected by the delay, in that they were not incarcerated nor subject to conditional release, and that only their security interests were affected by various means that she specifically considered and recited in the first application ... she concluded there was little, if any, actual prejudice to them, over and above the normal prejudice suffered by anyone charged with such regulatory offences" - See paragraphs 33 to 35.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - Eight accused were convicted of charges under the Fisheries Act and Regulations - On appeal, it was argued that the trial judge erred in failing to stay the charge against the accused, Andrew Henneberry, who was hindered in attending portions of the trial due to lack of wheelchair access - The Nova Scotia Supreme Court held that, in the absence of a Charter application before the trial judge, the court should not undertake an inquiry into whether Henneberry's wheelchair access to the Lunenburg and Liverpool courthouses constituted a breach of his rights under ss. 7, 11(d) and 15 of the Charter - The court declined to exercise its discretion "to provide a 'second shot' to raise an issue which could have been raised at trial" - Henneberry not only failed to raise a Charter challenge at trial, but, in addition, the facts that were now said to establish the right to a Charter remedy were discussed by counsel, with no suggestion that a remedy was required - See paragraphs 181 to 185.

Criminal Law - Topic 263

General principles - Corporations - Criminal liability - Basis of - The trial judge concluded that Ivy Fisheries Ltd. sold illegally caught tuna and that its directors, Clark, Wesley, and Marcel Henneberry, acquiesced and participated in the sale by accepting their shares of the proceeds, pursuant to s. 78.2 of the Fisheries Act - On appeal, Ivy Fisheries Ltd. submitted that it should not be convicted of this offence because it was not a sole director/sole shareholder corporation - The Nova Scotia Supreme Court rejected the argument - The court stated, inter alia, that "This statutory imputation of liability to the officers, directors or agents of the corporation is a separate issue altogether from whether the evidence establishes that the corporation has actually committed an offence. In the result, a corporation can be shown to have committed an offence even though it cannot be proven that any corporate officers 'directed, authorized, assented to, acquiesced in or participated in' the corporation's illegal behaviour. Here, the evidence adduced supports guilty verdicts for both the corporation and the directors" - See paragraphs 138 to 139.

Evidence - Topic 508

Presentation of evidence - Consent to admission of - Effect of - [See Evidence - Topic 1584 ].

Evidence - Topic 1584

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Conditions to admission - Eight accused appealed from their convictions for charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in determining the admissibility of documentary evidence tendered by the Crown - The Crown allegedly failed to properly tender certain Department of Fisheries and Oceans documents, in particular, Atlantic Bluefin Tuna Log Documents, as well as documents seized from the Dockside Monitoring Co. and from the accused, Ivy Fisheries Ltd. - The accused contended, in particular, that s. 30 of the Canada Evidence Act, which permitted the tendering of business records, was not complied with - As such, the accused submitted that the documents could not be used for proof of the truth of their contents - The Nova Scotia Supreme Court rejected the argument - By agreement of the parties, the documents were admitted into evidence by the trial judge to prove the truth of the facts on matters stated therein - This was not a situation where the requirements of the Canada Evidence Act were neglected or insufficiently established - The accused's counsel categorically stated the documents were admissible by consent - The Crown and the trial judge relied on that statement and the trial proceeded accordingly - The documents were properly admitted for the proof of the truth of the facts or matters stated therein - See paragraphs 39 to 70.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - Eight accused appealed from their convictions for charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in admitting the expert opinion evidence of a forensic accountant (Crockatt) - The Nova Scotia Supreme Court rejected the argument - There was no merit in the accused's submission that the trial judge erred in allowing the expert to testify when his report was not admitted into evidence - The accused's right to cross-examine Crockatt was not prejudiced as the accused's counsel had received a copy of his report attached to a notice under s. 657.3 of the Criminal Code - The accused's claim that the expert's opinion was inadmissible or should be disregarded because the expert lacked knowledge of documents and because his opinion was based in part, if not totally, on unproven facts or hearsay evidence, was without merit - The trial judge complied with the principles enunciated in R. v. Mohan and R. v. Lavallee - Crockatt did not usurp the role of the trial judge - It was up to the trial judge to accept some or all of the expert's conclusions and inferences or to reject his opinion evidence - See paragraphs 83 to 94.

Evidence - Topic 7003

Opinion evidence - Expert evidence - General - Procedural prerequisites to admission of - Eight accused appealed from their convictions for charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in qualifying Pipes as a handwriting expert and admitting his opinion evidence because of the "scanty" quality of his report and because the notice requirement for Pipes' testimony as an expert under s. 657.3 of the Criminal Code was not adequate, in that the documents referred to in his report were not attached to it - The Nova Scotia Supreme Court rejected the argument - There was compliance with the notice requirements of the Code - In any event, the remedy for failure to comply lay in s. 657.3(4) of the Code, not in holding an expert's opinion inadmissible - There was no prejudice to the accused - Their right to cross-examine Pipes was not prejudiced in any way since their counsel received a copy of his report in accordance with the notice requirements of s. 657.3 of the Code - The source documents referred to in the report, although not attached to the report but listed, had been provided to the accused's counsel through the disclosure process and were entered in evidence at trial - Some three months before Pipes testified, the accused's counsel received a second copy of the report, with the documents attached - The court also stated that "The quality of the report, although hardly determinative by its length, goes to the weight to be afforded to the expert's opinion by the trial judge and not to admissibility" - See paragraphs 95 to 101.

Evidence - Topic 7069

Opinion evidence - Expert evidence - Particular matters - Handwriting analysis - Eight accused appealed from their convictions for charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in admitting the expert opinion evidence of a handwriting expert (Pipes) - They argued that Pipes' conclusion as an expert was fundamentally flawed and of no weight, in that, in conducting his analysis, he had no "known signature to which to compare other signatures, i.e. no evidence before the court that the signatures the expert says are known are known" - The accused also contended that Pipes' report was admitted into evidence in error as it did not meet the basic criteria for an expert report, more particularly, the report failed to outline the basis for its "very brief conclusions" - The Nova Scotia Supreme Court rejected these arguments - To suggest that there was no known signature for analysis was simply wrong - Given the eight to nine month period of time that elapsed from the accused's receiving the report to Pipes testifying, there was no reason for the trial judge to determine that the accused were unable to prepare for the evidence of the expert so as to require an adjournment or order further particulars pursuant to s. 657.3(5) of the Criminal Code and neither were requested - The court stated that "Given the nature of the expertise, I am not persuaded that much more was needed to be said than providing the methodology in the report, which Mr. Pipes noted to be by visual and microscopical examination and comparison of the questioned specimen handwriting, hand printing and numbers. He was subject to cross-examination" - See paragraphs 102 to 108.

Evidence - Topic 7071

Opinion evidence - Reports by experts - General - [See Evidence - Topic 7000.4 , Evidence - Topic 7003 and Evidence - Topic 7069 ].

Evidence - Topic 7071

Opinion evidence - Reports by experts - General - The Nova Scotia Supreme Court stated that "When an expert witness is called to testify, s. 657.3(4) of the [Criminal] Code provides for noncompliance with subsection (3)'s various criteria of notice, providing a report, or summary of opinions, by such methods as adjournments to allow for cross-examination of the expert witness, ordering production of materials and calling of witnesses. There is no suggestion whatsoever that expert opinion evidence is to be disregarded or held inadmissible for noncompliance with providing a report, let alone for noncompliance with its substance. In any event, it is not the report but the testimony of the expert that forms the substantial evidence of his opinion for purposes of the trial. The report supplements or clarifies this evidence" - See paragraph 105.

Fish and Game - Topic 167

Fisheries - Regulation - Requirement to keep records and provide information - [See Fish and Game - Topic 2166 ].

Fish and Game - Topic 1700

Offences - General - Intent or mens rea - Offences of strict liability - Eight accused appealed from their convictions for charges under the Fisheries Act and Regulations - The accused argued that the trial judge erred in her interpretation and application of the principles of strict liability - The Nova Scotia Supreme Court rejected the argument - By using the words "prima facie", the trial judge was not using the standard of proof applicable to a motion for directed verdict of "some evidence" rather than proof beyond reasonable doubt, as the accused alleged - The trial judge's reference to "prima facie" unequivocally referred to that stage of the trial proceedings where the Crown had proven beyond a reasonable doubt the essential factual elements of the regulatory offences charged (i.e. the actus reus) thereby leaving it open to the accused to avoid liability by establishing a due diligence defence on the balance of probabilities - The Crown had no burden of proving either mens rea or negligence - Negligence was presumed from the bringing about of the prohibited act or omission that constituted the actus reas of the offence and the onus shifted to the defence to establish "due diligence" or "mistake of fact" on a balance of probabilities - No such defence evidence was called - See paragraphs 71 to 80.

Fish and Game - Topic 2005

Fishing offences - General - Party to offence (incl. corporate officers) - The trial judge found that the accused Wesley and Marcel Henneberry, as directors of Ivy Fisheries Ltd., under s. 78.2 of the Fisheries Act acquiesced and participated in the commission of the offence of permitting a person other than themselves, i.e., unauthorized captains Smith, Ryan and Parnell, to use the vessels "IVY" and "All of Us" respectively, to fish for and catch tuna, under licences issued only to the accused - The accused appealed, arguing that the judge erred in her interpretation and application of s. 78.2 of the Act - The Nova Scotia Supreme Court stated that "The appellants' contention that s. 78.2 cannot apply because the corporation was not charged has no merit. ... the Act makes it categorically clear that the corporation need not be charged with the offence in order for the directors to be charged. There is no other way to interpret the words, 'whether or not the corporation has been prosecuted'" - See paragraphs 126 to 129.

Fish and Game - Topic 2005

Fishing offences - General - Party to offence (incl. corporate officers) - The trial judge found that Ivy Fisheries Ltd. sold illegally caught tuna and that its directors, Clark, Wesley, and Marcel Henneberry, acquiesced and participated in the sale by accepting their shares of the proceeds, pursuant to s. 78.2 of the Fisheries Act - The individual directors appealed, arguing that they could not be convicted of this offence because the offence as charged in the information did not refer to s. 78.2 of the Fisheries Act - The Nova Scotia Supreme Court rejected the argument - Section 78.2 of the Fisheries Act neither described an offence nor created an offence - That was addressed in s. 33 and s. 78 respectively - Section 78.2 simply described the basis upon which liability could be established - It was not a substantial requirement of a count in an information - See paragraphs 135 to 137.

Fish and Game - Topic 2166

Fishing offences - Particular offences - Failure to keep records of catch - The trial judge found that Clark Henneberry, a registered fisher and the on-board captain of the fishing vessel "Becky H", fished for and caught 32 tuna under the authority of tuna fishing licence No. 109428 and that he contravened or failed to immediately enter the confirmation number, which was issued by the dockside monitoring company for each of the tuna caught and tagged, in the comment field of the applicable Atlantic Bluefin Tuna Log Documents - On appeal, it was argued that pursuant to s. 61 of the Fisheries Act and the conditions of tuna licence 109428, the obligation of maintaining the Atlantic Blue Fin Tuna Log Document rested with the licence holder, Jenny May Fisheries Ltd. - Therefore, it was argued, the trial judge erred in placing both the obligation to enter the dockside monitoring company's confirmation numbers immediately in the comment field of the log, and the resulting failure to comply with that obligation, on the captain, Clark Henneberry, where the fishing licence authorizing him to fish for tuna was a company licence issued to Jenny May Fisheries Ltd. - The Nova Scotia Supreme Court rejected the argument - The court stated that "the Act contemplates records or other documents being kept by any person who engages in fishing, or any person who is the owner, operator or manager of an enterprise that catches fish or any person who is the agent of either the person(s) engaging in fishing or the agent of the owner, operator or manager of the company that catches fish. That person is mandated to keep any record or documents required by the regulations or by the terms and conditions of any licence issued to the person under the Act and to do so in the manner and form prescribed by the regulations or the licence. Clark Henneberry was the captain of the vessel Becky H. and as such, engaged in fishing" - Further, license condition 25(a) prescribed that log keeping was to be completed by the captain - See paragraphs 115 to 123.

Fish and Game - Topic 2170.1

Fishing offences - Particular offences - Failure to forthwith return incidental catch - [See first Fish and Game - Topic 2180.5 ].

Fish and Game - Topic 2180.5

Fishing offences - Particular offences - Failure to comply with conditions of licence - The trial judge found that Wesley Henneberry, as a registered fisher and the on-board captain of the fishing vessel "Ivy", while fishing under the authority of a shark licence, incidentally caught 11 tuna and that he contravened or failed to comply with a condition of that licence by failing to immediately return each of the 11 tuna to the water from which they were taken (count 3) - The Nova Scotia Supreme Court dismissed Henneberry's appeal on this count - The fact that Henneberry had also been issued a tuna licence at the time he incidentally caught and failed to return Bluefin Tuna while fishing under the authority of a shark licence, was irrelevant and immaterial to the issue of whether he committed the offence of failing to comply with the conditions of the shark licence - See paragraph 124.

Fish and Game - Topic 2180.5

Fishing offences - Particular offences - Failure to comply with conditions of licence - The trial judge found that Wesley Henneberry, as a registered fisher and the on-board captain of the fishing vessel "Ivy", while fishing under the authority of a shark licence, incidentally caught 11 tuna and that he contravened or failed to comply with a condition of that licence by failing to immediately return each of the 11 tuna to the water (count 3) - The trial judge also found that Wesley Henneberry, as a registered fisher and the on-board captain of the fishing vessel "Ivy", while fishing under the authority of the shark licence, concurrently used a tuna fishing licence and did thereby contravene or fail to comply with a condition of the shark licence (count 4) - She found that while fishing under the authority of the shark licence and concurrently using a tuna licence, he caught and retained 11 tuna - The Nova Scotia Supreme Court dismissed Henneberry's appeal on these counts - When determining whether there had been a failure to comply with the condition of Henneberry's shark licence, requiring him not "to use the exploratory shark licence concurrently with another large pelagic licence" (count 4), the trial judge properly found no vagueness or ambiguity in the word "use" and thus dismissed the contention that the Crown needed to establish that Henneberry was doing two different types of fishing under two different licences at the same time - As she correctly stated the word "use" in the condition was not accidental - It was broader than the term "fish", and in this context it was broad enough to include hailing out under two licences for the same trip - By hailing out under a shark and tuna licence when conditions of one of the licences prohibited the licencee from using the other concurrently with it, an offence of failing to comply with a condition of the licence was committed - However, the court stated that this was quite apart from fishing the shark licence with the condition that all incidental catch were to be returned immediately to the water and rather than doing so, landing and selling it, thereby failing to comply with the condition of the shark licence (count 3) - The rule against multiple convictions demanded that the offences have no distinguishing elements - That was not so here - There is no relationship of proximity between facts or offences for the rule to apply between counts 3 and 4 - See paragraphs 124 to 125.

Fish and Game - Topic 2180.5

Fishing offences - Particular offences - Failure to comply with conditions of licence - The trial judge, pursuant to s. 22(7) of the Fishery General Regulations, concluded that Marcel Henneberry, as a registered fisher and on-board captain of the vessel "Ivy Rose", fished for and caught 24 tuna under authority of Licence No. 142645 and that he did so when not permitted to be commercially fishing for any species of fish per the Permit for Temporary Replacement or Substitute Operator that was issued to him as holder and operator of Licence No. 109436 and as a condition thereof - On appeal, Henneberry argued that he could not be convicted of failing to comply with a condition of a licence unless it was proven that the condition contravened was a condition of the licence under which he was actually fishing (licence No. 142645) at the time of the commission of the offence - The Crown's position was that s. 22(7) of the Regulations should be interpreted to mean that a fisherman holding a licence and, therefore "carrying out any activity under the authority of a licence", was not permitted to contravene the conditions in the licence issued to him - It did not mean that a fisherman holding a licence could be found to have contravened a condition of that licence only if it was established that he was actively fishing that same licence at the time of the commission of the offence - The Nova Scotia Supreme Court held that the Crown's position was correct - By virtue of holding licence No. 109436, and therefore "carrying out any activity under the authority of a licence,"Henneberry was not permitted to contravene conditions in the licence issued to him - See paragraphs 130 to 133.

Fish and Game - Topic 2180.5

Fishing offences - Particular offences - Failure to comply with conditions of licence - The trial judge determined that Parnell, a registered fisher and captain of the vessel "All of Us", fished for and caught 17 tuna under the authority of a Permit for Temporary Replacement or Substitute Operator issued to Marcel Henneberry in respect of tuna licence No. 109436 and failed to comply with the licence condition to immediately enter issued confirmation numbers in the comment field of the fishing logs - On apeal, Parnell argued that the obligation to complete the log rested with the licence holder pursuant to s. 61 of the Fisheries Act and the licence conditions - The Nova Scotia Supreme Court rejected the argument - The court stated that "Being authorized under the Permit, the appellant is presumed to know and to have accepted the terms and conditions associated with it, which includes the completion of hail reports and fishing logs and the prosecution of those who fail to complete the documents" - See paragraphs 142 to 143.

Fish and Game - Topic 2708.1

Offences - Sentence - Fines and penalties - Additional fines - From September 16 to December 16, 2000, Ivy Fisheries Ltd. used two company licences and three individual licences to fish for Bluefin Tuna - Of the 176 tuna that were recorded as being caught under those licences during that period, 135 were found to have been caught in contravention of the Fisheries Act and Regulations - Ivy Fisheries Ltd. and seven individuals were convicted of numerous charges under the Fisheries Act and Regulations - A lease licence was suspended for a year and each of the accused were fined under s. 78 of the Act - Ivy Fisheries Ltd. was found to have sold the 135 tuna for a total of $1,196,412.23 - $643,234.82 of the sales proceeds, being the value of 70 of the tuna which related to the most serious offences, were apportioned among the accused through the imposition of "additional fines" under s. 79 of the Act - Section 79 permitted the imposition of an additional fine in an amount equal to the court's finding of the amount of monetary benefits acquired or accrued to the offender - The trial judge imposed the fines under s. 79 on the basis of the gross sales value of the fish involved - She rejected the accused's argument that fines under s. 79 should be based on profit after the deduction of legitimate business expenses - The accused appealed, arguing that the trial judge erred in holding that "monetary benefits" referred to gross earnings rather than net earnings - The Nova Scotia Supreme Court rejected the argument - The trial judge correctly concluded that "monetary benefits" in s. 79 should be equated with the sale price of the tuna - See paragraphs 160 to 166.

Fish and Game - Topic 2708.1

Offences - Sentence - Fines and penalties - Additional fines - From September 16 to December 16, 2000, Ivy Fisheries Ltd. used two company licences and three individual licences to fish for Bluefin Tuna - Of the 176 tuna that were recorded as being caught under those licences during that period, 135 were found to have been caught in contravention of the Fisheries Act and Regulations - Ivy Fisheries Ltd. and seven individuals were convicted of numerous charges under the Fisheries Act and Regulations - A lease licence was suspended for a year and each of the accused were fined under s. 78 of the Act - Ivy Fisheries Ltd. was found to have sold the 135 tuna for a total of $1,196,412.23 - $643,234.82 of the sales proceeds, being the value of 70 of the tuna which related to the most serious offences, were apportioned among the accused through the imposition of "additional fines" under s. 79 of the Act - The accused appealed, arguing that the trial judge failed to consider the discretionary nature of a s. 79 fine and applied the provision, "in a manner contrary to legal norms" - The accused submitted that the word "may" in s. 79 indicated that an additional fine was discretionary, "over and above the fines ordered against the individuals for each of the various offences" - The accused submitted that to levy a fine in addition to numerous other fines, which combined totalled $839,734.83, in addition to a licence suspension, went "far beyond the measured exercise of discretionary sentencing power" - The Nova Scotia Supreme Court stated that "The appellants offer no principled reason to reduce or eliminate the s. 79 fines on the basis that they were excessive. Even if this court believes that s. 79 fines should have been in different amounts, there is no apparent basis to conclude that wrong principles were applied or that the fines did not fall into a reasonable range" - See paragraphs 169 to 172.

Fish and Game - Topic 2708.1

Offences - Sentence - Fines and penalties - Additional fines - From September 16 to December 16, 2000, Ivy Fisheries Ltd. used two company licences and three individual licences to fish for Bluefin Tuna - Of the 176 tuna that were recorded as being caught under those licences during that period, 135 were found to have been caught in contravention of the Fisheries Act and Regulations - Ivy Fisheries Ltd. and seven individuals were convicted of numerous charges under the Fisheries Act and Regulations - A lease licence was suspended for a year and each of the accused were fined under s. 78 of the Act - Ivy Fisheries Ltd. was found to have sold the 135 tuna for a total of $1,196,412.23 - $643,234.82 of the sales proceeds, being the value of 70 of the tuna which related to the most serious offences, were apportioned among the accused through the imposition of "additional fines" under s. 79 of the Act - The accused appealed, arguing that the "massive fines in this case, given that the fish were tagged, hailed, and within quota, is grossly disproportional and overly harsh" - The Nova Scotia Supreme Court stated that "the trial judge considered the established sentencing range together with the circumstances of the offences. The trial judge properly emphasized deterrence in the context of conservation related commercial fishing violations and imposed penalties sufficient to strongly encourage statutory compliance. The trial judge's decision is entitled to deference. The penalties fall within the established sentencing range and were not excessive or unreasonable in the circumstances ... The trial judge took note of the circumstances of the offenders, including each individual's family and income status, and their status as a principal or employee of Ivy Fishery Limited. She recognized the primacy of deterrence in regulatory sentencing, particularly in the fishery, where a scarce and declined resource is put at risk by overfishing" - See paragraphs 177 to 180.

Fish and Game - Topic 2726

Offences - Sentence - Fines and penalties - Cancellation or suspension of licence - Eight accused were convicted of numerous charges under the Fisheries Act and Regulations - Lease licence 142645 was suspended for a year and each of the accused were fined under s. 78 of the Act - "Additional fines" were also imposed on the accused under s. 79 of the Act - On appeal, the accused argued that the trial judge did not have jurisdiction to issue a licence suspension and prohibition against license 142645, which was owned by 10474 (Nfld.) Ltd., a company that was "not implicated in this matter" - According to the accused, to prohibit 10474 (Nfld.) Ltd. from applying for a new lease or licence was contrary to the "plain and ordinary meaning" of s. 79.1 of the Act - The Nova Scotia Supreme Court rejected the argument - On its face, s. 79.1 did not require that the person to whom the licence was issued be convicted of an offence, or charged with one - Nor did it require that the person convicted be the licence owner - All that was necessary was that the conviction be "in respect of any matter relating to any operations under a lease or a license"- See paragraph 175.

Fish and Game - Topic 6141

Offences - Practice - Evidence and proof - General - Eight accused appealed from their convictions for charges under the Fisheries Act and Regulations - The accused argued that the trial judge misdirected herself by admitting hearsay evidence of Fishery Officer Mossman and allowing him to testify in a narrative format as to alleged facts of which he had no personal or direct knowledge - The Nova Scotia Supreme Court rejected the argument - The court stated that "Officer Mossman's role as a lead investigating and exhibit officer, was to identify and address each of the hundred-plus documents he tendered in evidence. He provided the details about the documents and how they related to the charges. It was his role to show the court how these documents were relevant, one of the major preconditions of admissibility. Due to his experience and training as a Fishery Officer, he was also familiar with certain types of the documents tendered, such as fishing licences and conditions and fishing logs. It was open to him in this capacity to provide commentary on same and to relay to the court how and what they provided by way of information, how they were relevant to the specific charges and thereby assist the court in understanding the sequence of steps/events necessary to produce the information contained therein and the significance of these documents. The fact he read from some of the documents during his testimony is of no consequence, as the contents of the documents went in as evidence to prove the truth of the facts stated therein and they spoke for themselves" - See paragraphs 109 to 110.

Trials - Topic 1116

Summary convictions - Defences - Multiple convictions for same subject matter precluded - [See second Fish and Game - Topic 2180.5 ].

Trials - Topic 1116

Summary convictions - Defences - Multiple convictions for same subject matter precluded - The trial judge concluded that Ivy Fisheries Ltd. sold illegally caught tuna and that its directors, Clark, Wesley, and Marcel Henneberry, acquiesced and participated in the sale by accepting their shares of the proceeds, pursuant to s. 78.2 of the Fisheries Act (count 10) - On appeal, the accused argued that this was an offence charged in the alternative to other offences in the information and as such, the rule against multiple convictions applied between count 10 and those other alternative offences - The Nova Scotia Supreme Court stated that "This submission fails given the necessity of a relationship of sufficient proximity as between the offences which form the basis of the charges against the accused for the rule to apply ... the requirement of sufficient proximity of offences is satisfied only if there is no additional and distinguishing element between the offences ... The essential element of count 10 is the prohibited act of selling tuna caught in contravention of the Fisheries Act and Regulations. No other offence charged involves the sale of fish" - See paragraphs 140 to 141.

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 21].

R. v. Allen (H.D.) (1996), 92 O.A.C. 345; 110 C.C.C.(3d) 331 (C.A.), affd. [1997] 3 S.C.R. 700; 220 N.R. 67; 104 O.A.C. 237, refd to. [para. 24].

R. v. MacNeill (L.E.) (2006), 251 N.S.R.(2d) 54; 802 A.P.R. 54 (S.C.), refd to. [para. 28].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 235 C.C.C.(3d) 290; 2008 SCC 51, refd to. [para. 33].

R. v. Martin (A.) (1997), 152 Sask.R. 164; 140 W.A.C. 164 (C.A.), refd to. [para. 55].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 56].

R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 152 C.C.C.(3d) 157; 2001 NSCA 45, refd to. [para. 56].

R. v. Ross (W.) (1992), 92 Nfld. & P.E.I.R. 51; 287 A.P.R. 51 (Nfld. T.D.), consd. [para. 61].

R. v. Ralph (S.) (2002), 220 Nfld. & P.E.I.R. 351; 657 A.P.R. 351 (N.L.T.D.), refd to. [para. 64].

Bottrell v. Bottrell, [1994] B.C.T.C. Uned. 168; 91 B.C.L.R.(2d) 300 (S.C.), refd to. [para. 65].

Child and Family Services of Winnipeg South v. R.S. and A.P. (1986), 40 Man.R.(2d) 64 (Q.B.), refd to. [para. 65].

Samuel v. Chrysler Credit Canada Ltd. et al. (2007), 245 B.C.A.C. 263; 405 W.A.C. 263; 2007 BCCA 431, refd to. [para. 65].

R. v. Wood (J.D.) (2001), 191 N.S.R.(2d) 201; 596 A.P.R. 201; 2001 NSCA 38, refd to. [para. 66].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353, refd to. [para. 71].

R. v. Wholesale Travel Group Inc. and Chedore (1991), 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 72].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 81].

R. v. M.L., [1998] O.J. No. 4480, refd to. [para. 89].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 91].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 112].

Housen v. Nikolaison et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 112].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 112].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 119].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 125].

R. v. Savory (1992), 108 N.S.R.(2d) 245; 294 A.P.R. 245 (C.A.), refd to. [para. 133].

R. v. Pratas (J.A.C.) (2000), 190 Nfld. & P.E.I.R. 153; 576 A.P.R. 153 (Nfld. T.D.), refd to. [para. 137].

R. v. Cousins (J.D.) (1997), 155 Nfld. & P.E.I.R. 169; 481 A.P.R. 169; 119 C.C.C.(3d) 432 (Nfld. C.A.), leave to appeal denied (1998), 226 N.R. 399; 165 Nfld. & P.E.I.R. 360; 509 A.P.R. 360; 120 C.C.C.(3d) vii (S.C.C.), refd to. [para. 137].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 141].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 146].

R. v. Grandy and Bell (1992), 113 N.S.R.(2d) 85; 309 A.P.R. 85 (Co. Ct.), refd to. [para. 150].

R. v. MacKinnon (A.) (1996), 154 N.S.R.(2d) 217; 452 A.P.R. 217 (S.C.), refd to. [para. 151].

R. v. Cox; R. v. Forsey, [1999] N.J. No. 264 (Prov. Ct.), refd to. [para. 152].

R. v. Reid (M.O.), [2001] B.C.T.C. 1307; 2001 BCSC 1307, refd to. [para. 153].

R. v. Ross (1990), 96 N.S.R.(2d) 444; 253 A.P.R. 444 (Co. Ct.), refd to. [para. 154].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 154].

R. v. Mood (J.D.) (1999), 174 N.S.R.(2d) 292; 532 A.P.R. 292 (C.A.), refd to. [para. 156].

R. v. Oates (B.) (2004), 233 Nfld. & P.E.I.R. 138; 693 A.P.R. 138 (N.L.C.A.), refd to. [para. 156].

R. v. Meade (D.) (2004), 234 Nfld. & P.E.I.R. 1; 696 A.P.R. 1 (N.L.C.A.), refd to. [para. 156].

R. v. Rideout (R.K.) (2005), 229 N.S.R.(2d) 290; 725 A.P.R. 290; 2005 NSSC 4, affd. (2005), 236 N.S.R.(2d) 354; 749 A.P.R. 354; 2005 NSCA 122, refd to. [para. 163].

R. v. Galloway (M.) et al. (2007), 259 N.S.R.(2d) 99; 828 A.P.R. 99; 2007 NSCA 103, refd to. [para. 168].

R. v. Cluett (G.S.) (2002), 217 Nfld. & P.E.I.R. 87; 651 A.P.R. 87 (N.L.T.D.), refd to. [para. 173].

Joys v. Minister of National Revenue (1995), 189 N.R. 175; 128 D.L.R.(4th) 385 (F.C.A.), refd to. [para. 175].

R. v. Croft (D.H.) (2003), 218 N.S.R.(2d) 184; 687 A.P.R. 184; 2003 NSCA 109, refd to. [para. 177].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 181].

R. v. Morrissey, [2003] O.J. No. 1475, refd to. [para. 181].

R. v. Francis (D.B.) (2007), 253 N.S.R.(2d) 163; 807 A.P.R. 163; 2007 NSSC 108, refd to. [para. 184].

R. v. Toor (J.S.) (2001), 277 A.R. 350; 242 W.A.C. 350; 2001 ABCA 88, refd to. [para. 184].

R. v. Hayes, [2003] O.J. No. 4590 (C.A.), refd to. [para. 184].

R. v. Dixon, [2005] O.J. No. 4496 (Sup. Ct.), refd to. [para. 184].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 184].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 184].

R. v. Logan, Logan and Johnson (1989), 30 O.A.C. 321; 46 C.C.C.(3d) 354 (C.A.), affd. [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 184].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 184].

R. v. Beardy (G.C.) (1993), 83 Man.R.(2d) 308; 36 W.A.C. 308 (C.A.), refd to. [para. 185].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30 [para. 57].

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [para. 17].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 61 [para. 117]; sect. 78, sect. 79, sect. 79.1 [para. 149].

Authors and Works Noticed:

Ewart, J. Douglas, Lomer, Michael, and Casey, Jeff, Documentary Evidence in Canada (1984), p. 12 [para. 55].

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.) (1999 Looseleaf Update), pp. 15-2, 15-3 [para. 137].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2005 Looseleaf Update), para. 29-20 [para. 58].

Counsel:

Thomas E. Hart and David J. Demirkan, for the appellants;

Gerald Grant, for the respondent.

This appeal was heard on October 6 to 8, 2008, at Bridgewater, N.S., before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 30, 2009.