R. v. McIntyre (D.), 2004 NBPC 10

• Judge: Ferguson, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: March 30, 2004
• Jurisdiction: New Brunswick
• Citations: 2004 NBPC 10;(2004), 274 N.B.R.(2d) 275 (PC)

R. v. McIntyre (D.) (2004), 274 N.B.R.(2d) 275 (PC);

    274 R.N.-B.(2e) 275; 718 A.P.R. 275

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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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Temp. Cite: [2004] N.B.R.(2d) TBEd. AP.023

Her Majesty the Queen v. Donald McIntyre

(12982813; 2004 NBPC 10)

Indexed As: R. v. McIntyre (D.)

New Brunswick Provincial Court

Judicial District of Miramichi

Ferguson, P.C.J.

April 14, 2004.

Summary:

The accused was charged with violating s. 78(a) of the Fisheries Act, after being found in possession of undersized lobster.

The New Brunswick Provincial Court acquitted the accused.

Fish and Game - Topic 2107

Fishing offences - Defences - Due dili­gence - The accused was charged with violating s. 78(a) of the Fisheries Act, after being found in possession of undersized lobster on May 30, 2003 - A variation order respecting retention size had been published once in the Telegraph Journal and L'Acadie Nouvelle on May 8, 2003 and May 1, 2003, respectively - No other method of notification was attempted to communicate the change - The fishing season had been set to open April 28, 2003, but was delayed and opened on May 5, 2003 - The published notice did not include the proclamation date of the varia­tion order - The New Brunswick Provincial Court held that the notice of the change was inadequate (not reasonable) and there­fore the variation order had not achieved the status of a statutory instrument - Thus, the accused was under no obligation to exercise due diligence respecting the effec­tive date of the change.

Fish and Game - Topic 2110

Fishing offences - Defences - Inadequate notice of regulation - Section 7(1) of the Fishery (General) Regulations provided that where a change was made to a close time, fishing quota or limit on the size or weight of fish, notice had to be given to the persons affected or likely to be affected by one or more of six enumerated methods - The New Brunswick Provincial Court doubted the adequacy of using only one of these methods - The court held that, even if the section only required that any one of the methods be employed, the notice re­quirement in s. 7(1) of the Regulations was subject to s. 11(2) of the Statutory Instru­ments Act, which prohibited conviction of any person likely to be affected by the variation order unless reasonable steps had been taken to bring the purport of the legislation to the notice of those persons - The Crown had to prove reasonable notice on a balance of probabilities - See para­graphs 30 to 38.

Fish and Game - Topic 2110

Fishing offences - Defences - Inadequate notice of regulation - [See Fish and Game - Topic 2107 ].

Statutes - Topic 5359

Operation and effect - Delegated legis­lation - Regulations - Requirement of public notice - [See Fish and Game - Topic 2107 and first Fish and Game - Topic 2110 ].

Cases Noticed:

R. v. Drake (E.J.) et al. (1996), 139 Nfld. & P.E.I.R. 136; 433 A.P.R. 136 (Nfld. Prov. Ct.), refd to. [para. 25].

R. v. Saulnier (1989), 90 N.S.R.(2d) 77; 230 A.P.R. 77 (Co. Ct.), refd to. [para. 25].

Spinney v. Canada (Minister of Fisheries and Oceans) (2000), 183 F.T.R. 71 (T.D.), refd to. [para. 26].

R. v. Corcoran (J.F.) (1999), 181 Nfld. & P.E.I.R. 341; 550 A.P.R. 341 (Nfld. T.D.), refd to. [para. 26].

Gulf Trollers Association v. Canada (Min­ister of Fisheries and Oceans) et al., [1987] 2 F.C. 93; 72 N.R. 31 (F.C.A.), refd to. [para. 27].

Western Pulp Inc. v. Roxburgh et al. (1990), 122 N.R. 156 (F.C.A.), refd to. [para. 27].

R. v. Gillis (J.J.) (2001), 194 N.S.R.(2d) 42; 606 A.P.R. 42 (Prov. Ct.), refd to. [para. 27].

R. v. Gorman (R.), [1998] B.C.T.C. Uned. 10 (S.C.), refd to. [para. 28].

R. v. Michael, [1988] B.C.J. No. 1043 (C.A.), refd to. [para. 41].

R. v. Sault Ste. Marie (City) (1978), 21 N.R. 295; 3 C.R.(3d) 30 (S.C.C.), refd to. [para. 49].

Statutes Noticed:

Fisheries Act Regulations (Can.), Fishery (General) Regulations, SOR/93-53, sect. 7(1) [para. 23].

Fishery (General) Regulations - see Fish­eries Act Regulations (Can.).

Counsel:

Bannon Morrissy, for the Crown;

George Martin, for the defendant.

This case was heard on March 30, 2004, by Ferguson, P.C.J., of the New Brunswick Provincial Court, Judicial District of Mira­michi, who delivered the following decision on April 14, 2004.