R. v. Morash (S.E.), (1994) 129 N.S.R.(2d) 34 (CA)

• Judge: Hallett, Matthews and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 20, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 129 N.S.R.(2d) 34 (CA)

R. v. Morash (S.E.) (1994), 129 N.S.R.(2d) 34 (CA);

  362 A.P.R. 34

MLB headnote and full text

Stephen Eric Morash (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 02929)

Indexed As: R. v. Morash (S.E.)

Nova Scotia Court of Appeal

Hallett, Matthews and Pugsley, JJ.A.

February 4, 1994.

Summary:

The accused was convicted of fishing with a gill net in a closed area. The accused was fined $20,000, the value of the catch which had been seized was forfeited, the fishing license held by a company controlled by the accused was suspended and the accused and his company were prohibited from applying for a license for five months and 18 days. The accused appealed his conviction and sentence.

The Nova Scotia Supreme Court, in a decision reported at 124 N.S.R.(2d) 241; 345 A.P.R. 241, upheld the conviction, but varied the sentence by reducing the fine to $14,000. The accused appealed.

The Nova Scotia Court of Appeal affirmed the conviction, but allowed the sentence appeal in part by setting aside the forfeiture order.

Civil Rights - Topic 3830

Cruel and unusual punishment - What constitutes cruel and unusual punishment - Circumstances not constituting - An accused convicted of fishing with a gill net in a closed area was fined $14,000, the value of the catch which had been seized was forfeited and the fishing license held by a company controlled by the accused was suspended - The accused argued that the sentence constituted cruel and unusual punishment within the meaning of s. 12 of the Charter - The Nova Scotia Court of Appeal held that the sanctions imposed were reasonable in the circumstances and did not constitute cruel and unusual punishment - See paragraphs 10 and 11.

Civil Rights - Topic 5502

Equality and protection of the law - Whether right to equality abridged - An accused convicted of fishing with a gill net in a closed area, argued that his equality rights under s. 15 of the Charter were infringed because the Atlantic Fishery Regulations (s. 90(1)) gave fishermen whose home port was in Shelburne County certain fishing privileges in an area called the "Shelburne Closed Box", which were not accorded to other fishermen - The Nova Scotia Court of Appeal held that the issue was irrelevant, where the accused was not fishing in the Shelburne Closed Box - Further, even if the issue was not moot, the court agreed that there was no basis upon which to conclude that the accused had been discriminated against within the meaning of s. 15 - See para­graphs 8 and 9.

Civil Rights - Topic 8548

Canadian Charter of Rights and Freedoms - Cruel and unusual treatment or punish­ment - The Nova Scotia Court of Appeal held that the test for whether sanctions imposed constituted cruel or unusual punishment, was whether the punishment prescribed was so excessive as to outrage standards of decency - See paragraph 10.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What consti­tutes a breach of s. 15 - [See Civil Rights - Topic 5502 ].

Fish and Game - Topic 2003

Fishing offences - Fishing defined - The accused appealed his conviction for fishing with a gill net in a closed area, arguing, inter alia, that he was not fishing when he was observed, but was only preparing to fish - The Nova Scotia Court of Appeal considered the meaning of "fishing" and affirmed that the accused was fishing - See paragraphs 6 and 7.

Fish and Game - Topic 2714

Offences - Sentence, fines and penalties - Fishing or possession of fish in a prohi­bited area - [See Fish and Game - Topic 2719 ].

Fish and Game - Topic 2719

Offences - Sentence, fines and penalties - Fishing with a gill net - The accused was convicted of fishing with a gill net in a closed area - A summary conviction appeal judge reduced the fine imposed from $20,000 to $14,000, affirmed the forfeiture of the value of the catch which was seized, and suspended the license held by a company controlled by the accused - The Nova Scotia Court of Appeal affirmed the fine and the suspension, but set aside the forfeiture order - See paragraphs 15 to 23.

Fish and Game - Topic 2901

Offences - Forfeitures - The accused was convicted of fishing with a gill net in a closed area - The value of the accused's catch, which was seized, was forfeited - The Nova Scotia Court of Appeal set aside the forfeiture order, where the fisheries officer who seized the catch did not have reasonable grounds to believe that the fish were obtained by the commission of the offence, because there was no evidence that the fish were caught in the closed area - See paragraphs 15 to 23.

Words and Phrases

Fishing - The Nova Scotia Court of Appeal considered the meaning of "fish­ing" in s. 2 of the Fisheries Act, R.S.C. 1985, c. F-14 - See paragraphs 6 and 7.

Cases Noticed:

Frederick Gerring Jr. v. Canada (1897), 27 S.C.R. 271, appld. [para. 6].

Ship Frederick Gerring Jr. - see Frederick Gerring Jr. v. Canada.

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 193, refd to. [para. 9].

MacKinnon et al. v. Canada, [1987] 1 F.C. 490; 6 F.T.R. 203 (T.D.), refd to. [para. 9].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 58 C.R.(3d) 193, appld. [para. 10].

R. v. Austin (1939), 72 C.C.C. 349 (Alta. C.A.), refd to. [para. 12].

R. v. Hill (1961), 128 C.C.C. 343 (Sask. C.A.), refd to. [para. 12].

R. v. Paterson, [1963] 2 C.C.C. 369 (B.C.C.A.), refd to. [para. 12].

R. v. McAuslane (1967), 3 C.R.N.S. 36 (Ont. C.A.), leave to appeal to S.C.C. refused, [1967] S.C.R. viii, refd to. [para. 12].

R. v. Bookazine Enterprises (1965) Ltd. et al. - see R. v. McAuslane.

R. v. Wynn (1972), 10 C.C.C.(2d) 319 (Ont. C.A.), refd to. [para. 12].

R. v. McIntyre (1976), 13 N.B.R.(2d) 220; 13 A.P.R. 220 (C.A.), refd to. [para. 12].

R. v. Sihler (1976), 31 C.C.C.(2d) 73 (Ont. C.A.), refd to. [para. 12].

R. v. Culley (1977), 36 C.C.C.(2d) 433 (Ont. C.A.), refd to. [para. 12].

R. v. Prier, [1979] 6 W.W.R. 324 (Alta. Dist. Ct.); revsd. [1979] 6 W.W.R. 328, refd to. [para. 12].

R. v. Thomas (No. 2) (1980), 53 C.C.C.(2d) 285 (B.C.C.A.), refd to. [para. 12].

R. v. Negridge (1980), 54 C.C.C.(2d) 304 (Ont. C.A.), refd to. [para. 12].

R. v. Sanatkar (1981), 64 C.C.C.(2d) 325 (Ont. C.A.), refd to. [para. 12].

R. v. Broda (1983), 25 Sask.R. 37; 7 C.C.C.(3d) 161 (C.A.), refd to. [para. 12].

R. v. Guitare (1987), 81 N.B.R.(2d) 171; 205 A.P.R. 171 (C.A.), refd to. [para. 12].

R. v. Guida (1989), 51 C.C.C.(3d) 305 (Qué. C.A.), refd to. [para. 12].

R. v. Brown (D.A.) (1989), 95 A.R. 318 (C.A.), refd to. [para. 12].

R. v. S.S. Kresge Co. (1975), 8 Nfld. & P.E.I.R. 415; 8 A.P.R. 415; 27 C.C.C.(2d) 420 (P.E.I.C.A.), refd to. [para. 13].

R. v. Loughery (1992), 73 C.C.C.(3d) 411 (Alta. C.A.), refd to. [para. 13].

R. v. Waite, [1965] 1 C.C.C. 301; 46 C.R. 23 (N.B.C.A.), refd to. [para. 15].

Statutes Noticed:

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

Canadian Charter of Rights and Freedoms, 1982, sect. 12 [para. 10]; sect. 15 [para. 8].

Criminal Code, R.S.C. 1985, c. C-46, sect. 839 [para. 12].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 51, sect. 72(1), sect. 72(2) [para. 16]; sect. 78(a) [para. 11].

Fisheries Act Regulations (Can.), Atlantic Fishery Regulations, sect. 90(1) [para. 8].

Counsel:

David A. Grant, for the appellant;

Michael A. Paré, for the respondent.

This appeal was heard on January 20, 1994, before Hallett, Matthews and Pugsley, JJ.A., of the Nova Scotia Court of Appeal. On February 4, 1994, Hallett, J.A., delivered the following judgment for the court.