R. v. Johnson and Wilson, (1987) 78 N.B.R.(2d) 411 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: April 30, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 78 N.B.R.(2d) 411 (PC)

R. v. Johnson (1987), 78 N.B.R.(2d) 411 (PC);

    78 R.N.-B.(2e) 411; 198 A.P.R. 411

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty The Queen, on the information of Larry Dagget (informant) v. George Willard Johnson and Donald Eugene Wilson (defendants)

Indexed As: R. v. Johnson and Wilson

Répertorié: R. v. Johnson and Wilson

New Brunswick Provincial Court

Criminal Division

Harper, P.C.J.

April 30, 1987.

Summary:

Résumé:

The Atlantic Fishery Regulations set out an area off Grand Manan in which herring fishing with mobile equipment (e.g. purse seiners) was prohibited. The area was marked by an imaginary line known as the "herring line". For years the Department of Fisheries gave tacit approval to the practice of purse seiners setting close to the line and allowing their boats to drift across the herring line with the tide while carrying out fishing activities. The masters of two purse seiners whose boats drifted across the line were charged with fishing in a prohibited area contrary to the Regulations. The masters raised the defence of "officially induced error".

The New Brunswick Provincial Court, Criminal Division, dismissed the information against the masters. The court recognized and approved of the defence of "officially induced error" and held that it was applicable in this case. The court also held, on the facts, that there was reasonable doubt as to an intention to do wrong by the masters.

Criminal Law - Topic 212

Common law defences - Officially induced error of law - The New Brunswick Provincial Court, Criminal Division, recognized and approved of the defence of "officially induced error" and set out the seven elements necessary to establish the defence - See paragraph 52 - The court cautioned however that the defence would only work once in a given set of circumstances with the same parties and would not work for those in similar cases who might reasonably be expected to be aware that the defence had been used - See paragraphs 47 to 70.

Criminal Law - Topic 212

Common law defences - Officially induced error of law - The Atlantic Fishery Regulations set out an area in which herring fishing with purse seiners was prohibited - The area was marked by an imaginary line called the "herring line" - For years the Department of Fisheries gave tacit approval to the practice of purse seiners setting close to the line and allowing their boats to drift across the line with the tide, while carrying out fishing activities - The masters of two seiners charged with fishing across the line raised the defence of "officially induced error" - The New Brunswick Provincial Court, Criminal Division, recognized and approved of this defence and held that it applied in this case, but warned that the defence was not again available to these masters or other captains in the area who might reasonably be expected to be aware of the judgment - See paragraphs 47 to 70.

Fish and Game - Topic 1700

Offences - Intent or mens rea - Offences of strict liability - The masters of two purse seiners were charged under the Atlantic Fishery Regulations with unlawfully fishing for herring in a prohibited area during close time - The New Brunswick Provincial Court, Criminal Division, categorized the offence as one of "strict liability" within the categories outlined in R. v. City of Sault Ste. Marie, 21 N.R. 295 (S.C.C.) - See paragraphs 47, 48.

Fish and Game - Topic 2003

Fishing offences - General - Fishing - Defined - The Fisheries Act, R.S.C. 1970, c. F-14, defined fishing as "fishing for, catching or attempting to catch fish by any method" - The New Brunswick Provincial Court, Criminal Division, stated that "all activities engaged in by a purse seiner up to and including the final transfer of 'dried up' herring from the seine to the hold of the seiner or directly to the hold of a herring carrier constitute 'fishing' within the ambit of the definition of the word set out in s. 2 of the Fisheries Act" - See paragraph 31 - The court held therefore that a seiner that was "holding" (i.e. having set the seine, completed the circle and closed the purse) and another seiner that was "pumping herring" (loading its catch into a carrier) were "fishing" within the meaning of s. 2 of the Act - See paragraphs 30 to 42.

Fish and Game - Topic 2105

Fishing offences - Defences - Officially induced error - [See second Criminal Law - Topic 212 above].

Fish and Game - Topic 2163

Fishing offences - Fishing in prohibited area - Purse seining - The Atlantic Fishery Regulations set out an area in which it was unlawful to fish for herring using mobile gear (e.g. purse seiners) - The imaginary line marking the prohibited zone was known as the "herring line" - The practice of purse seiners was to intentionally set as close to the line as they could on a flooding tide, in order to drift with the tide across the line and fish in protected waters - The New Brunswick Provincial Court, Criminal Division, held that this practice, although carried out for years with tacit approval of the Department of Fisheries, was "strictly and without a shadow of a doubt an illegal and unlawful act directly contrary to the Regulations" - See paragraphs 30 to 46.

Cases Noticed:

"Frederick Gerring Jr.", The Ship v. R. (1897), 27 S.C.R. 271, appld. [para. 32].

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30, refd to. [para. 48].

R. v. MacDougall, [1982] 2 S.C.R. 605; 44 N.R. 560; 1 C.C.C.(3d) 65, refd to. [para. 53].

R. v. Walker and Somma (1980), 51 C.C.C.(2d) 423, agreed with [para. 59].

R. v. Robertson (1984), 43 C.R.(3d) 39, agreed with [para. 63].

Statutes Noticed:

Fisheries Act, R.S.C. 1970, c. F-14, sect. 2 [para. 4]; sect. 34, sect. 61(1) [para. 1].

Atlantic Fishery Regulations, 1985, P.C. 1985-3662, sect. 37(1), sect. 37(2) [para. 9]; sect. 41 [para. 1].

Criminal Code, R.S.C. 1970, c. C-34, sect. 19 [paras. 55, 58].

Authors and Works Noticed:

Kastner, Nancy S., Mistake of Law and the Defence of Officially Induced Error (1985-86), 28 Criminal Law Quarterly 308 [paras. 54, 55].

Counsel:

Ronald Sutherland, for the Crown;

David Walker, for both defendants.

This case was heard before Harper, P.C.J., of the New Brunswick Provincial Court, Criminal Division, who delivered the following decision on April 30, 1987.