R. v. McCaul, (1988) 87 N.S.R.(2d) 344 (CoCt)

• Case Date: September 13, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 87 N.S.R.(2d) 344 (CoCt)

R. v. McCaul (1988), 87 N.S.R.(2d) 344 (CoCt);

    222 A.P.R. 344

MLB headnote and full text

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

(C. BW. 6997)

Indexed As: R. v. McCaul

Nova Scotia County Court

District Number Two

Freeman, J.C.C.

September 13, 1988.

Summary:

An accused fisherman was 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 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.

(See related case reported (1988), 87 N.S.R.(2d) 361; 222 A.P.R. 361)

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 Scotia 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.

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 - Also, the letter appeared to make furnishing a return a condition of holding a licence - 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.

Cases Noticed:

R. v. Gough (1986), 70 N.S.R.(2d) 192; 166 A.P.R. 192, consd. [para. 15].

R. v. Smith (1973), 15 C.C.C.(2d) 113 (Alta. C.A.), consd. [para. 32].

Walker v. R., [1939] 2 D.L.R. 353; [1939] S.C.R. 214; 71 C.C.C. 305, refd to. [para. 36].

R. v. Marshall, [1961] S.C.R. 123; 129 C.C.C. 232, refd to. [para. 37].

R. v. Bossman, [1984] 56 A.R. 103; 15 C.C.C.(2d) 251 (C.A.), refd to. [para. 37].

Piche v. R., [1971] S.C.R. 23; [1970] 4 C.C.C. 27; 11 D.L.R.(2d) 700, refd to. [para. 39].

R. v. Fex (1973), 12 C.C.C.(2d) 239, refd to. [para. 39].

R. v. Harrison (1982), 1 C.C.C.(3d) 96 (Ont. C.A.), refd to. [para. 41].

R. v. d'Eon (1988), 83 N.S.R.(2d) 142; 210 A.P.R. 142 (C.A.), refd to. [para. 42].

R. v. Therens, [1985] 1 S.C.R. 614; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(2d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 15, refd to. [para. 49].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1; [1987] 3 W.W.R. 699; 56 C.R.(3d) 193, refd to. [para. 51].

Ibrahim v. The King, [1914] A.C. 599 (P.C.), refd to. [para. 57].

R. v. Horvath (1979), 25 N.R. 537; 44 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 59].

R. v. Erven (1978), 25 N.R. 49; 44 C.C.C.(2d) 76 (S.C.C.), refd to. [para. 61].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(c), sect. 13 [para. 45].

Atlantic Fishery Regulations, sect. 25 [para. 21].

Fisheries Act, R.S.C. 1970, c. F-14, sect. 48 [para. 23]; sect. 61 [para. 70]; sect. 61.1 [para. 73].

Fishery Regulations (Atl.) - see Atlantic Fishery Regulations.

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence (2nd Ed.), p. 939 [para. 52].

Counsel:

Mark F. Dempsey, for the appellant;

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

This appeal was heard at Bridgewater, Nova Scotia, before Freeman, J.C.C., of the Nova Scotia County Court of District Number Two, who delivered the following judgment on September 13, 1988.