R. v. McCaul, (1989) 90 N.S.R.(2d) 426 (CA)

• Judge: Jones, Macdonald and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 22, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 90 N.S.R.(2d) 426 (CA)

R. v. McCaul (1989), 90 N.S.R.(2d) 426 (CA);

    230 A.P.R. 426

MLB headnote and full text

Her Majesty the Queen (appellant) v. Rodney V. McCaul (respondent)

(S.C.C. 01972; 01973)

Indexed As: R. v. McCaul

Nova Scotia Supreme Court

Appeal Division

Jones, Macdonald and Matthews, JJ.A.

June 22, 1989.

Summary:

The accused fisherman was charged under s. 48(a) of the Fisheries Act with failing to furnish a true return of his catch upon the request of a fisheries officer. The trial judge acquitted the accused on the ground that a valid request had not been made under s. 48. The Crown appealed. The Nova Scotia County Court, in a judgment reported 87 N.S.R.(2d) 361; 222 A.P.R. 361, dismissed the appeal.

The fisherman was also charged under s. 87 of the Atlantic Fishery Regulations with unlawfully fishing for haddock during the close time in a fishing area. The Crown relied on a log sheet, which was furnished as a true return as required by s. 48 of the Fisheries Act, to prove an essential element of the offence (location). The trial judge ruled that the log sheet was to be excluded under s. 24(2) of the Charter of Rights and Freedoms, as it violated the accused's rights under ss. 7, 11(d) and 11(g) of the Charter. The trial judge acquitted the accused. The Crown appealed.

The Nova Scotia County Court, in a judgment reported 87 N.S.R.(2d) 344; 222 A.P.R. 344, dismissed the appeal, without dealing with the Charter issues. The court held that the log sheet was a statement by an accused to a person in authority and was inadmissible unless the Crown proved it was made freely and voluntarily. The court held that in light of, inter alia, the coercive effect of s. 48, the Crown failed to prove the log sheet was furnished freely and voluntarily. Accordingly, without proof of an essential element of the offence (location), the court affirmed the acquittal. The Crown appealed both acquittals. The appeals were heard together.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeals, set aside the acquittals, substituted convictions and remitted the matter to the trial judge for sentencing.

Civil Rights - Topic 4303

Protection against self-incrimination - Right to refuse to testify - Section 48 of the Fisheries Act required the captain of a fishing vessel to furnish upon request a true return of his catch - Section 11(c) of the Charter of Rights and Freedoms provided that "any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence" - The Nova Scotia Court of Appeal held that s. 11(c) related to testimonial matters only and did not apply to a request under s. 48 - See paragraphs 41 to 47.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceedings - General - Section 48 of the Fisheries Act required the captain of a fishing vessel to furnish upon request a true return of his catch - Section 13 of the Charter of Rights and Freedoms provided that "a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence" - The Nova Scotia Court of Appeal held that s. 13 related to testimonial matters only and did not apply to a request under s. 48 - See paragraphs 41 to 47.

Criminal Law - Topic 5339

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - Section 48 of the Fisheries Act required the captain of a fishing vessel to furnish upon request a true return of his catch - The Nova County Court stated that although on a charge of making a false return the return was admissible without proof of voluntariness, where the return was relied on to prove a prior offence (e.g., unlawful fishing), the Crown must prove the return was furnished freely and voluntarily - The Nova Scotia Court of Appeal disagreed - The court stated the return was not requested for the purpose of prosecution, as there was no reason to believe an offence had been committed or that the return was incorrect - The court held that the return was admissible.

Criminal Law - Topic 5355

Evidence - Witnesses - Confessions and voluntary statements - Whether statement made freely and voluntarily - Section 48 of the Fisheries Act required the captain of a fishing vessel to furnish upon request a true return of his catch - A fisherman's licence was marked valid subject to conditions - Attached to the licence was a letter requesting under s. 48 that a true return be furnished following each fishing trip - Failure to furnish a return was punishable by fine or imprisonment - A fisherman delivered a true return to a fisheries officer who boarded his vessel, but who did not specifically demand the return - The Nova Scotia County Court held that the return was coerced by the combined effect of s. 48, the letter and the relationship between fisheries officers and fishermen - The court held that the return was not made freely and voluntarily and was accordingly inadmissible - The Nova Scotia Court of Appeal held that the return was admissible - The court stated that there was a statutory obligation to furnish the return; it need not be voluntarily given.

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 upon request a true return of his catch - A fisherman's licence was marked valid subject to attached conditions - A letter attached to the licence made a blanket request under s. 48 to furnish a true return after each fishing trip - A fisherman furnished a false return to a fisheries officer - The officer did not specifically request it - The Nova Scotia Court of Appeal held that the letter was a valid request under s. 48 by a fisheries officer for a true return respecting each fishing voyage - See paragraph 28.

Cases Noticed:

R. v. Sproule (1987), 81 N.S.R.(2d) 308; 203 A.P.R. 308, refd to. [para. 25].

R. v. Gough (1985), 70 N.S.R.(2d) 192; 166 A.P.R. 192; 23 C.C.C.(3d) 279, refd to. [para. 29].

R. v. Walker, [1939] S.C.R. 214; 71 C.C.C. 305, refd to. [para. 29].

R. v. Arenburg (1989), 87 N.S.R.(2d) 164; 222 A.P.R. 164, refd to. [para. 32].

R. v. Pedersen (1956), 114 C.C.C. 366, refd to. [para. 35].

R. v. Smith (1973), 15 C.C.C.(2d) 113 (Alta. C.A.), refd to. [para. 36].

R. v. DeClercq, [1968] S.C.R. 902; [1969] 1 C.C.C. 197, refd to. [para. 37].

R. v. Marcoux and Solomon, [1976] S.C. R. 763; 4 N.R. 64; 24 C.C.C.(2d) 1, refd to. [para. 42].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 43].

R. v. Altseimer (1982), 1 C.C.C.(3d) 7 (Ont. C.A.), refd to. [para. 44].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al. (1986), 17 O.A.C. 330; 30 C.C.C.(3d) 145 (C.A.), refd to. [para. 45].

Canada v. Amway Corp. et al., [1989] 1 S.C.R. 21; 91 N.R. 18, refd to. [para. 46].

Statutes Noticed:

Atlantic Fishery Regulations - see Fisheries Act Regulations.

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(c), sect. 13 [para. 41].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 48 [para. 24]; sect. 84 [para. 19].

Fisheries Act Regulations, Atlantic Fishery Regulations, sect. 87 [para. 13].

Counsel:

Michael A. Pare, for the appellant;

S. Clifford Hood, Q.C., for the respondent.

These appeals were heard on April 7, 1989, before Jones, Macdonald and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On June 22, 1989, Macdonald, J.A., delivered the following judgment for the Court of Appeal.