R. v. Payne (E.) et al., (2011) 312 Nfld. & P.E.I.R. 334 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 19, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 312 Nfld. & P.E.I.R. 334 (NLPC)

R. v. Payne (E.) (2011), 312 Nfld. & P.E.I.R. 334 (NLPC);

    971 A.P.R. 334

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. SE.037

Her Majesty the Queen v. Eugene Payne and Lindsey Crocker

(2011 PCNL 1310A06625)

Indexed As: R. v. Payne (E.) et al.

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

July 19, 2011.

Summary:

Payne and Crocker were charged with offences contrary to ss. 62 and 63(1) of the Fisheries Act. It was alleged that Payne and Crocker obstructed a fisheries officer and made false statements to a fisheries officer.

The Newfoundland and Labrador Provincial Court concluded that the Crown had proven that Payne committed both of the offences and that Crocker breached s. 62 of the Fisheries Act.

Fish and Game - Topic 2005

Fishing offences - General - Party to offence (incl. corporate officers) - [See Fish and Game - Topic 2192 ].

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of fisheries officers or guardians - The Crown alleged that, on May 8, 2010, Payne and Crocker obstructed a fisheries officer and made false statements to a fisheries officer, contrary to ss. 62 and 63(1) of the Fisheries Act, respectively - On the evidence, the Newfoundland and Labrador Provincial Court concluded that on May 8, 2010, Payne and Crocker were fishing for lobster pursuant to Payne's licence; they separated a number of lobsters they caught from their main catch as they did not intend to sell or reveal their existence at the wharf; as they were tying up at the wharf, Crocker saw Officer Shears and knew he was a fisheries officer; Crocker then dumped the lobster into the water; and when interviewed by Officer Shears, Payne denied that Crocker dumped the lobster - The court convicted Crocker of obstruction by disposing of the lobster, thereby preventing the fisheries officer from examining the lobsters - The lobsters disposed of by Crocker were caught under Payne's lobster fishing licence - Payne knew that Crocker was committing an offence while acting under his licence and he failed to establish that it occurred without his consent - Thus, Payne was convicted of obstruction - The Crown had proven that Payne made a misleading and false statement to a fisheries officer carrying out his duties - Thus, Payne was convicted of an offence contrary to s. 63(1) - See paragraphs 45 to 49.

Fish and Game - Topic 2107

Fishing offences - Defences - Due diligence - [See Fish and Game - Topic 2192 ].

Fish and Game - Topic 2167.2

Fishing offences - Particular offences - Providing false or misleading information - [See Fish and Game - Topic 2083 ].

Fish and Game - Topic 2192

Fishing offences - Licences - Parties to offences - Section 78.4 of the Fisheries Act indicated that a licence holder could be responsible for the actions of others acting under his or her licence - The Newfoundland and Labrador Provincial Court stated that "it is not necessary to prove that the licence holder committed the actus reus of the offence for a conviction to be entered. All that must be proven is that an offence occurred and that it occurred in relation to an operation conducted under the accused person's licence. If this is proven the accused licence holder will be convicted unless he or she can establish that the offence was committed without their knowledge or consent. This is not the same as the more general due diligence defence which applies to all offences and all accused persons charged under the Fisheries Act ... The defence of due diligence does not become operational until the Crown has proven that the accused committed the actus reus of the offence (as the principal or party) with which he or she is charged" - See paragraph 24.

Cases Noticed:

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 13].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 13].

R. v. Squires (E.) (2002), 209 Nfld. & P.E.I.R. 99; 626 A.P.R. 99 (N.L.C.A.), refd to. [para. 14].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 15].

R. v. Rumboldt (D.J.) (1993), 111 Nfld. & P.E.I.R. 174; 348 A.P.R. 174 (Nfld. Prov. Ct.), refd to. [para. 17].

R. v. Adams (S.G.) (2010), 488 A.R. 286 (Q.B.), refd to. [para. 17].

R. v. Tortolano, Kelly and Cadwell (1975), 28 C.C.C.(2d) 562 (Ont. C.A.), refd to. [para. 17, refd to. [para. 17].

R. v. MacPherson and Cole (1977), 24 N.S.R.(2d) 102; 35 A.P.R. 102 (C.A.), refd to. [para. 17].

R. v. O'Hara (G.) (1993), 119 N.S.R.(2d) 128; 330 A.P.R. 128 (Prov. Ct.), refd to. [para. l17].

R. v. Forsey (M.) (1999), 178 Nfld. & P.E.I.R. 148; 544 A.P.R. 148 (Nfld. Prov. Ct.) affd. (2003), 226 Nfld. & P.E.I.R. 238; 677 A.P.R. 238 (Nfld. T.D.), affd. [2004] N.J. No. 316, consd. [paras. 20, 21, footnote 2].

R. v. Derry (M.T.) (2000), 141 B.C.A.C. 313; 231 W.A.C. 313; 2000 BCAC 464, refd to. [para. 22].

R. v. F.A.S. Seafood Producers Ltd. - see R. v. Derry (M.T.).

R. v. T. & T. Fisheries Inc., [2005] P.E.I.J. No. 74 (Prov. Ct.), consd. [para. 23].

R. v. Kukuljan and Emil K. Fishing Corp., 2005 BCPC 721, refd to. [para. 24].

R. v. Hynes, [2004] N.J. No. 450 (Nfld. Prov. Ct.), consd. [para. 25].

R. v. Baccari (A.P.) (2011), 510 A.R. 301; 527 W.A.C. 301; 2011 ABCA 205, refd to. [para. 38].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 62, sect. 63(1) [para. 16]; sect. 78.4 [para. 19].

Counsel:

A. May, for Her Majesty the Queen;

R. Ash, for Mr. Payne;

J. Luscombe, for Mr. Crocker.

This appeal was heard at Corner Brook, Newfoundland and Labrador, on May 16, July 6 and 15, 2011, before Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on July 19, 2011.